By Steven G. Mehta
“For those who don’t believe, no proof is possible.” by Stuart Chase
One of the areas where attorneys can greatly enhance their opportunities at mediation is by brining the proper evidence and demonstrative proof to the mediation. Many attorneys will prepare for a mediation by simply picking up the pleading file and perhaps the discovery file and then go to the mediation. However, they forget to bring many documents that would be critical to assisting in helping the other side to come to a better resolution of the case. For example, often times in mediations a dispute will occur as to what was stated at the deposition. An astute negotiator will be save enough to bring the deposition to the mediation and be able to show the mediator the proof of his or her point. The physical proof provides several tools to the mediator. First, it confirms the credibility of the party providing such proof by showing that the party has made a representation and that representation has been proven to be true. Second, many times the other side’s attorney may have reviewed that piece of deposition but may have provided an interpretation to the client. As such, having the exact deposition testimony and then allowing the mediator to provide that deposition testimony to the other side can allow the opposing client to have a direct understanding of your interpretation of the evidence without potential minimization from the opposing attorney’s view point. Third, studies have shown that as much as 60% of the population interprets information on a visual basis. A certain percentage also interprets information based on auditory senses and then finally another percentage interprets information based upon a physical perception. By queuing into the fact that people may be interpreting things visually, and by providing the actual physical evidence or proof for somebody to see with their own eyes, the evidence such as a deposition may have a greater impact than just simply your interpretation of what was stated in the deposition. In addition, another important purpose of providing visuals or demonstrative evidence in a mediation is for the same reason that attorneys will have demonstrative evidence at trial. People will retain more information if they are able to both visually see the information as well as hear the information at the same time. In fact, the studies show that there is an approximate 80% retention of information that is given in both a visual and audibly format. As such, the information that has been visually presented as well as auditory presented to the opposing side, can have a greater long standing effect upon the opposing party. This may assist the other side to alter their position in negotiations.
By seeking to present demonstrative evidence at a mediation, this does not mean that you necessarily have to bring power point presentations and expensive graphics. You can bring evidence such as depositions, photographs, maps, videotapes and evidence from discovery and other such items.
The key to successfully using demonstrative evidence is timing. By having the evidence at hand and then using at the right time in the mediation, you can have a powerful effect on the other side; and consequently can significantly enhance your negotiating position.