Arbitration & Mediation

The Effective Use of Visual Aids in Mediation

By Christopher Annunziata

Nancy Hudgins has a great post discussing the benefit of the use of visual aids in trial that would also work in mediation. As I mentioned in my comment to her post, being a visual person myself, I encourage the use of such aids. In my confirmation letter, I even request that the parties bring “any physical evidence or documents you believe would support your position and help persuade the other side.”  As my current practice involves mainly court-referred cases where one or both parties are unrepresented, it is rare.

But on occasion, I am pleasantly surprised. I find there is nothing more powerful than a visual representation of what is at issue.  In my early days of practice as a defense lawyer, we received numerous “settlement packages” from plaintiff’s firms.  They contained pictures of the plaintiff before the injury with their family or playing sports or simply being an average Joe or Jane; then pictures of the damaged vehicle and pictures of the plaintiff’s injuries; and finally a itemized spreadsheet of the medical bills, lost wages and other economic damages.  The good ones would tell a story without much in the way of narrative.  We could tell quickly which cases needed settlement.

I remember one particular trail where the plaintiff’s lawyer was extremely effective in his use of a demonstrative aid.  The defendant had struck a police officer when he lost control of his car on a snowy and icy interstate highway.  This being Atlanta, such conditions are rare occurrences and the local news media had broadcast numerous warnings on radio and TV to stay off the roads unless there was an emergency.

The defendant was an immigrant who claimed he did not speak English at all and required a translator for his deposition and at trial.  He claimed he had not heard any warnings and if he had, he would not have understood them.  He had no real “emergency” to attend to that Sunday morning, he was simply going to church.

The testimony proceeded as expected, slowly, with the plaintiff’s counsel asking the interpreter the question, then having it relayed to the defendant.  In the middle of testimony, the plaintiff’s counsel turned to look directly at the defendant and quickly asked him to remove his wallet and show him his driver’s license.  Before the interpreter could relay the question and the defense counsel could object, the defendant leaned over, removed his wallet and started to hand over his driver’s license.   Plaintiff’s counsel smugly continued questioning the defendant directly.  It had its desired effect because the defendant got hit with a fairly serious verdict.  (For the record, I was counsel for another party in the case, not the defendant).

Of course, this particular tactic might not work in mediation, but every party should be aware of the impact such aids have on juries, judges and opposing parties.

Full post as published by CKA Mediation and Arbitration Services Blog on April 28, 2008 (boomark / email).