16 Ways to Use Your iPad at Mediation
iPads are ubiquitous. We see them on the airplane, at the beach, on the next table at lunch, in the coffee shop and on counsel table during motions and trials. We use them for entertainment, to communicate, to gather information, engage in research, follow the news, access email, maintain calendars, prepare PowerPoint/Key Note Presentations, and more. Increasingly, we use them in our practices to complement our work horse computers, because they are easily transported. In mediation, I’ve seen multiple uses at the table for advocates and the mediator. What follows are suggestions for how you might put your own iPad or tablet computer to work.
1. Document Exchange: My first experience with an iPad in mediation came in a case presenting a claim for long term disability benefits. LTD cases are document heavy. Finding the right document at the right time for the right purpose can be challenging. One attorney arrived with every document saved on his computer. The other wheeled in four bankers boxes on two luggage carts. Finding specific documents was quick and easy for the first, time consuming and laborious for the second. Eventually, the issue was narrowed to whether any treating physicians had determined plaintiff to be totally and permanently disabled within a specific 4-week period. With a few key strokes, plaintiff’s counsel - with a sigh of relief - quickly found the document he was looking for. He dropped the image onto his iPad so I could show opposing counsel. Using the Bates stamp, defense counsel dug through her boxes for a hard copy - and accepted plaintiff’s last offer. I bought an iPad immediately.
2. Sharing Email: My very first mediation after purchasing an iPad involved claims of employment discrimination and sexual harassment. The parties agreed to mediation before the start of discovery and knew very little about each other’s claims and defenses. As the mediation unfolded, defense counsel questioned whether plaintiff had documentation to support one of her complaints. Plaintiff’s counsel had a number of damaging emails from a top corporate manager saved on his laptop. The emails were forwarded to my iPad for display in the defendant’s caucus. Defendant’s corporate representative had never seen them. After making calls and learning “the rest of the story,”, he settled the case. Counsel could have shared hard copies. Using the iPad was convenient and simple. Looking at email on a computer screen added a touch of realism.
3. Drafting a Letter of Apology: In a commercial dispute, the corporate representatives suing for fraud and misrepresentation were righteously indignant. The owner/president of the defendant business was somber, remorseful and prepared to apologize in writing. He recognized that his chief subordinates - whose employment had been terminated - had let him down, having engaged in conduct neither condoned nor approved. After agreement on dollars, the parties reached an impasse over precise wording in the apology letter. Part of the problem was seeing the letter on an iPhone screen. With my iPad, I was able to integrate alternative drafts until the parties reached agreement on a final version. The iPad was valuable for composing the letter, seeing how it looked and reading what it said.
4. Sharing Snip-Its of Deposition Testimony: Many disputes commonly reach mediation after the exchange of thousands of documents and the taking of multiple depositions resulting in hundreds of pages of transcript. In such disputes, counsel rarely bring their entire file. Hence, if a party changes or enhances their story at the mediation table, the other side starts looking for impeachment material. Too often, however, the key transcript - containing contradictory testimony - is back at the office. When the advocates remember the disputed testimony differently, the discussion is unproductive. An iPad can be a potent antidote. In a probate dispute, for example, the claimant denied being involved in an ugly incident with another family member. His behavior in the incident explained why he had been written out of the estate plan. If he wasn’t part of the incident, as claimed, perhaps there was something to the allegation of undue influence. Numerous depositions and thousands of documents had been exchanged but not one of the attorneys brought along the entire file in hard copy. Not surprising. There were multiple red ropes filling file cabinets in all their offices. An important risk issue for all parties was which version of the incident would most likely be believed by a jury. One attorney called her office and e-copies of deposition transcript were emailed. The relevant Q and A was quickly found and the claimant reminded of his previous testimony. The case did not settle immediately, but those few lines of testimony had an impact on the claimant’s flexibility. The case settled shortly after.
5. Understanding Spreadsheets: In a commercial dispute between two competing business entities, the parties argued as much over damage calculations and theories of loss as they did over liability. One attorney repeatedly complained he could not understand how plaintiff’s claim for damages was calculated. I understood the numbers (to a degree) but not sufficiently well to explain them in the other conference room. At that point, the parties were uninterested in a joint session to discuss numbers. One of the advocates was proficient with spreadsheets. While I was caucusing with the other party, he sat down and developed three alternative spreadsheets projecting lost profit and damages with much the same result in each. After forwarding the spreadsheets to my iPad, he walked me through the calculations step-by-step until even I could explain them. The projections were then emailed to the other side and I went in to answer questions. The calculations became the basis for the final settlement numbers.
6. Drafting a Joint Press Release: Sometimes we mediate cases that are in the news, the dispute caught up in the frenzy of media coverage. In one such case I mediated, the parties reached agreement on all terms, including agreement to issue a joint press release. As the devil is in the details, resolution started to unravel due to alternative visions of what that press release should say. Again, iPad technology came to the rescue. We’d settled so many other issues that evening, we decided to mediate the press release, as well. The parties exchanged language by emailing draft proposals to me. My job was to explain or “translate” their concerns. Once each side saw the exact words and understood the underlying interests of the other, they reached agreement on a final version.
7. What Do the Court Rules Provide: In a garden variety employment dispute, the parties found a way to disagree about a court rule. No problem. My iPad was connected to a wireless network and we were able to look up the rule and move past the dispute.
8. The Corporate Website: In a commercial dispute over ownership of rights to an invention, one of the parties accused the other of improperly taking credit for an aspect of the product on its website after the developer moved on to another company. After a few choruses of “we took it down,” and “no, you did not take it down,” I used my iPad to take a look for myself with the parties watching. The reference had in fact been removed from the page where it had been posted originally, but a version remained posted on a different page of the website, a page containing positive press coverage of corporate activity. No one had bothered to review a page filled with “old news.” The failure to remove the credit had been inadvertent. The news clipping was taken down and an irritant which made settlement more difficult was removed.
9. Memorandum of Understanding/Term Sheet Drafting: When the parties reach a settlement, best practice dictates that nobody leave the mediation table until all sign a binding and enforceable document memorializing their agreements. Otherwise, a party may go home, talk to a trusted advisor, spouse or friend and experience a change of heart. Moreover, issues sometimes surface in agreement drafting not previously considered. Away from the mediation table and days later, drafting disputes can prove difficult, taking weeks if not months to resolve. I encourage defense counsel to provide boilerplate Final Settlement and Release of All Claims language to opposing counsel long before the mediation starts in order to fill in the blanks when resolution is achieved at the table. Sometimes it doesn’t go as planned. When the parties do not exchange final agreement language in advance, a Memorandum of Understanding or Term Sheet is needed. When someone at the table has an iPad or computer, drafting becomes substantially easier. Everyone can easily see the language, changes can be readily made without crossing out mistakes and modifications, no one’s handwriting is tested for readability, and the final document can be readily emailed to parties participating by phone or sent to a printer wirelessly.
10. Keeping Track of Agreements: Some cases are more complicated than others. Sometimes parties reach agreement on various questions along the way to a final resolution. What’s the best method for keeping track? In an employment case, for example, the parties may agree to mutual non-disparagement in the event of resolution, removal of a bad evaluation from the personnel file, a change in title, adjournment of an event in a related proceeding, reimbursement of an expense payment, etc. With an iPad, it is easy to account for and later retrieve such “mini-agreements" in one place. In the bad old BI days (Before iPad), everyone searched through multiple pages of notes on yellow legal pads hoping to “catch” them all. Not anymore.
11. Notes to Self: Sometimes an idea occurs to me as I’m mediating, but the time isn’t ripe for exploring it. In the past, I made notes in the margin of my legal pad. As the process progressed, these notes were sometimes forgotten. Using the iPad Notes App allows me to retain and keep track of such ideas quickly and easily.
12. Calculating Numbers: Many times, a case presents simple numbers - numbers that no one has thought to add together in advance: lost wages to date, total court costs, expense reimbursements, number of complaints per year, etc. When it becomes necessary to add up numbers at the table, the iPad calculator App does the trick quite well. In the past, I used an iPhone. A larger screen and bigger numbers make this task - you’ll pardon the expression - geometrically easier. And, if you want others to see how the totals come out, the larger screen can be readily seen by everyone else at the table. I have not yet invested in an LCD projector, but I just might do so soon.
13. Emailing Photos: Many cases present issues where a photograph can be a significant piece of evidence. Photos printed on a copy machine are generally of poor quality. Electronic versions of photos displayed on an iPad are very effective. In a recent mediation, the parties argued about the text of certain hand lettered signs in the work place. Defendant took pictures with his iPhone to settle the argument. The text was too small to make out but when transferred to an iPad, they were readable and unmistakeable. In a discrimination case, a photo of the staff directory in a building was used to argue that women were not accorded the same respect as men. In a fire loss case, pictures of the destruction from multiple angles was persuasive in understanding damages. In an Americans with Disabilities Act case, a video was brought to mediation to demonstrate that a reasonable accommodation was possible.
14. Mediator Standards: Michigan has adopted new standards of conduct governing mediator responsibilities. They’re clear and detailed. From time to time, I’ve felt the need to review those standards during mediation to refresh my memory and avoid getting into trouble. I could easily make a copy and carry them in my briefcase. It is easier to bring them up on my iPad and review them electronically.
15. Picture it Settled: A friend introduced me to a free software program which allows the user to plug in various offers and counter-offers made during the course of a negotiation to anticipate where the process might conclude. The program, Picture it Settled, is simple, easy to use and takes into account both the dollars and the percentage change each move represents. The graph created can help bolster parties who grow frustrated with the slow pace of offers and counter-offers that are sometimes required by the bargaining styles of certain litigators.
16. “What We’ve Got Here Is a Failure to Communicate:” Have you noticed how often disputes are the result of a breakdown in communication between parties? In a business break up, a partner didn’t explain his decision to deviate from a board decision. In a termination case, a subordinate handled one crisis rather than another but didn’t inform the boss. In a business dispute, the customer didn’t pay an invoice and provided no explanation. In a bank case, the borrower failed to give notice a payment would be delayed. The list goes on; we’ve all seen it. Absent good communication, even parties in long standing relationships can grow suspicious and begin to draw negative inferences. Where money is at stake, suspicion, distrust and a lack of information in combination can lead to litigation. As mediator, I often find myself asking the disputants and their counsel whether they remember the movie “Cool Hand Luke” with Paul Newman. In the film, Newman’s character is a smart aleck sentenced to hard labor on a Southern chain gang. Strother Martin plays a sadistic overseer. In one famous scene, Martin looks down at Newman writhing in the dirt after a beating and says, only a hint of sarcasm in his voice, “what we have here is a failure to communicate.” I prepared a PowerPoint slide depicting the two actors along with the quote for a CLE presentation. In a recent case I was struck by the extent to which a failure to communicate was at the center of the dispute. Believing a picture is worth a thousand words, I pulled out my iPad, found the slide and showed it to the parties and their lawyers. Everyone laughed. Everyone got the point. We were able to move forward. That slide is now part of my mediator’s tool kit, available to show in every case where it might be appropriate.
There you have it: 16 different ways to make use of an iPad at mediation. Most work equally well for advocates and mediators. We are limited only by our imagination.