MEDIATION AND POST-ELECTION LITIGATION (the parties' attorneys]," Weiner writes, "the foundations were laid for what was to come." 119 Could mediator(s) perhaps appointed at the start of the recount process, have resolved this dispute more effectively? This question can be answered affirmatively in a number of respects. First, the substance of this dispute could have been addressed more directly. In the litigation context, the question of jurisdiction was outcome-determinative, even though irrelevant to whether or not the votes should be counted and under what standard. Judge Gearin refused to issue the restraining order, not based on the merits of the claim, but on the grounds that she lacked jurisdiction to do so. A failure to receive a decision on the merits, not to mention developing standards to fill in the statutory gaps that would govern future similar disputes, further fueled the flames rather than contained them.120 With the assistance of skilled mediator(s) the parties might have been able to develop a set of standards for identifying, verifying, and counting neglected or overlooked ballots early on. Doing so may have precluded or at least reduced in scope what turned into a battle that took eight months and cost millions in legal fees. Second, mediation might have reduced nastiness. A mediated agreement establishing mutual interest in a fair process could have been a feather in the cap of both sides (and in our system of Democracy more generally). Instead, the public experienced yet another dose of aggressive lawyering and candidate posturing. Third, as a related point, the parties might have been better able to manage the press to prevent misinformation-here, confusion about the existence and location of the missing ballots ensued.121 Without sacrificing key elements of transparency (i.e., that the mediation happened, what the arguments were on both sides, how the parties resolved the dispute) the two sides might have been able to agree on a mutually beneficial set of terms by which to interface with the media. It would be naive to think that each side 2008, available at http://minnesotaindependent.com/17385/recount-hannity-pawlentycar-ballot-lie. 119 Weiner, supra note 53, at 30. 120 Note that Secretary Mark Ritchie doubts whether the Franken camp wanted a decision on the merits at all, but rather used the incident as part of its press strategy. Interview with Secretary Mark Ritchie, Secretary of State, Minn. Office of the Sec. of State (May 25, 2011). 121 I bore direct witness to the power of misinformation. I was sitting in at a garage getting my car fixed in Williamsburg, VA reading Weiner's book when a man in the waiting room said, "Yeah, I remember the Minnesota recount-that's the one where all those ballots got stashed in some lady's trunk." 355 HeinOnline -- 27 Ohio St. J. on Disp. Resol. 355 2012