Using Technology to Effectively Tell Your Story And Get Your Best Settlement During Mediations

by Steven H. Kruis, Esq. and Monty A. McIntyre, Esq.

We recently worked together in a mediation. Mr. Kruis was the mediator and Mr. McIntyre represented one of the parties. During the joint session, Mr. McIntyre effectively used demonstrative evidence to present his side of the case, and the parties were ultimately able to reach a settlement.

After the mediation, we discussed the impact of demonstrative evidence in mediations and how often such evidence is actually used in that context. In our experience (both of us have served as mediators), demonstrative evidence is presented far too seldom. This article discusses the benefits of effectively presenting demonstrative evidence during a mediation session.

The likelihood of settling a case during mediation increases proportionate with the amount of information exchanged by the parties. The joint session, usually at the beginning of the mediation and attended by all parties and counsel, is an ideal setting for counsel to use technology to tell a compelling story for the benefit of the decision-makers on the other side of the case.

In far too many mediations, counsel squander an important opportunity by not utilizing demonstrative evidence. Such evidence might include videotaped deposition clips of a critical witness, excerpts of significant documents, charts, photographs, videos or diagrams. Demonstrative evidence makes a powerful impact on the decision-makers during mediation, just as it does on jurors and judges at trial. A picture is truly worth a thousand words. Software such as PowerPoint, Trial Director and Summation, allow trial lawyers to effectively present demonstrative evidence to tell their story.

The trial lawyer who uses demonstrative evidence avoids being just another "talking head." They let the actual case evidence tell the story, with a much greater impact on the listeners. Such presentations allow the other parties to understand the theme of the case, and more fully appreciate their adversary's strengths, as well as the risks of trying the case. In addition, the other side will also begin to appreciate that you know how to present the most convincing case to the trier of fact.

Considering these benefits, why isn't demonstrative evidence used more often in mediations? Often, counsel don't think about this tool early enough. Demonstrative evidence, however, will likely be used during trial, so it also makes good sense to prepare it early enough to use it during the mediation. Not only will such evidence help the case resolve on more favorable terms, but if the cases does go to trial, counsel will be much further along in their trial preparation.

Another reason is that trial lawyers often want to "hold back" critical information during mediation, believing they need the element of surprise in the event the case goes to trial. However, more times than not, the "withheld" information is already known or suspected by the other side. This is something we've both experienced many times as mediators. Moreover, even if a critical fact is known only to you, consider whether a tactical advantage is really lost if the other side learns about it. Rarely is opposing counsel able to change a fact before trial.

In our view, the advantages of disclosing the critical facts in the course of a compelling presentation, far outweighs any potential disadvantages. The mediation session is one of your few opportunities during the course of a lawsuit to speak directly to the decision-makers on the other side of the table. An effective presentation can impress the other side with the merits of your case; failure to present a compelling story greatly hinders your chances for a fair settlement. By holding back, you may well prevent the other side from accurately assessing their risk based on all of the information.

Finally, since most cases ultimately settle anyway, it makes sense to tell your best story when the critical decision-makers are present in the same room. Settling later, after the momentum of the mediation is lost, is often more difficult.

In short, to get the best settlements, good trial counsel should consider using demonstrative evidence to persuasively tell his or her story.