I cannot tell you how many times I have been in a mediation and one side tells me something to the effect that they have this great evidence that will totally change the case. When I ask if I can show the other side, they tell me, that they didn’t bring it, the game changing smoke gun evidence with them. The failure to bring all the critical evidence is probably one of the most common mistakes that negotiators make in mediation.
First, it is important to understand that often times in the world of litigation, anything that you say can get spun by the other side. If you think about it, litigation is often a little like two-party politics–each side will attempt to spin the information to best suit their own needs and interests.
Second, there is significant research to demonstrate that the majority of the population are visual learners. In other words, they learn and comprehend things better in visual form. By bringing the visual evidence to the mediation, the other side can see the evidence and not just hear what you say the evidence demonstrates.
Consider common phrases or colloquialisms such as “I need to see it to believe it,” or “Missouri is the show me state,” or “I can’t believe my eyes” or “seeing is believing” or “my eyes don’t fail me now.” All of these phrases demonstrate the power that seeing something brings to the mediation.
Trial lawyers often understand this principle and apply it in jury trials. They will show the piece of evidence to the jury in a blow up or on the big screen at the same time they are questioning the witness. Part of the reason is so that the jury can see the evidence at the same time and form their own conclusions.
Third, many people make the assumption that the other side has already seen the evidence or that they have it in their possession. While it may be true that the other side’s attorney may have seen the evidence, it is possible that the other side’s client may not have seen the evidence. Many times, when I present visual evidence to one side, the attorney may say that he or she has seen the evidence, but frequently the client is completely unaware of the specific evidence and has only been given a summary by their attorney. It is extremely powerful to show the unfiltered evidence directly to the client.
It is one thing to tell a person that the witness is lying; it is a completely different thing to show a person that the witness is lying.