When Mediators listen, people talk.
A picture is worth 1000 words. We all know that, yet few litigators think to bring visual and demonstrative aides to mediation. They’re missing a good bet. My advice?
I mean really use them.
Design a mediation process that includes a joint session. Use the joint session to demonstrate the persuasive power of your visual aid to opposing counsel and client.
Build your presentation around the demonstrative aid or visual. The message: "This is what you face if we don’t settle this case today."
Mediation is about helping parties appreciate their risk. By bringing your visual and demonstrative aids to mediation, you preview how they will be used in front of the jury. A powerful display of demonstrative evidence hammers home risk and vulnerability.
Michigan lawyers are reluctant to engage in joint sessions - but the client doesn't have to say a word. This is the trial lawyer's show. "Here's how this is going to look when I show it to the jury and this is what I'm going to say when I do it:” Alternatively, share it with the mediator. Ask the mediator to carry your message to the other room: “They have some exhibits you really ought to see.”
A savvy federal district judge once told me that in his courtroom, the U.S. Attorney uses "Trial Director" presentation software. Trial Director is very powerful program that produces compelling visual document and photographic animations. In many cases, the federal prosecutor calls in the criminal defendant and counsel to show how they intend to present the case. In white collar crime cases, Trial Director reduces the likelihood a jury will be bored by all the exhibits in the prosecutions paper trail. The percentage of cases that plead as a result has increased dramatically. "It's almost unfair," the judge told me.
Do you have aerial photographs? A computer simulation? A diagram complete with mylar overlays? Are there compelling charts or graphs? A video? Many of these can be attached as exhibits to your mediation summary, of course. But in my experience attachments are rarely as powerful as the originals. Whether the demonstrative aides are glossy photos, charts and graphs mounted on foam board, or blow ups of key admissions in deposition, consider making use of them in your next mediation. If the exhibits are electronic, bring along your laptop and projector to demonstrate the powerful way they will be put to use.
In two recent commercial dispute, plaintiffs brought in an example of the part/material it thought it was buying and an example of the part/material supplied. The exemplar said it all. The rest was damages.
The vast majority of cases settle at mediation. If you keep your best material under wraps to “save it for trial”, it is not likely to see the light of day.