I am pleased to publish an interview with commercial mediator Victoria Pynchon. Vickie mediates in Southern California through Settle It Now Dispute Resolution Services and Judicate West. Her blog: Settle It Now Negotiation Blog is widely read by lawyers, judges, CEO's and fellow mediators. If her blog is not in your reader, subscribe now!We've been talking here about conceiving of and preparing visual aids to use at the mediation. Vickie had a great blog post earlier this year about the use of visual aids in mediations, so of course I turned to her for her advice.
Q: Why bother making visual aids for mediation?
A: At least half of the mediation process is about persuasion – that your narrative of the facts is more cohesive and convincing than the other side's view; your legal arguments have greater "punch"; and your client is more sympathetic than your opponent's. You aren't trying to persuade the mediator (though influencing the mediator is important). You're trying to persuade the other party who has been hearing its own narrative read back to it by its attorney for months, years, sometimes decades. The type of visual aid necessary to unsettle the other side; to make it question its world-view; to depress its expectation of victory, is one that by-passes the mind and goes straight to the emotions. There's a lot written about this by jury consultants. I'd advise anyone litigating a case worth in excess of half a million dollars to consult with those sources before the mediation and to prepare visual aids in conformance with that advice. And subscribe to trial attorney and jury consultant Anne Reed’s excellent jury blog Deliberations.
Why use visual aids to persuade at a mediation? Because it's one of the very few opportunities you have to actually reach the party (not the attorney) on the other side.
For the other half of the mediation process -- locating and leveraging your opponent's interests in an attempt to address them with imaginative settlement proposals -- visual aids are not going to be very helpful.
Q: If lawyers use visual aids at a mediation, aren’t they giving away an argument they could surprise the other side with at trial?
A: There are two answers to this. The first one is obvious. You have a 5 to 10% chance of going to trial and a 90-95% chance of settling. I don't believe in saving anything for trial because I don't think I'll get there. The second answer is not so obvious. You don't need to save anything because if you spend it all today, you'll be blown away by what you pick up tomorrow. I learned this as a writer. When I began writing creatively again, I hoarded my precious prose, fearing that I'd never write anything that good again. What I found is that spending 100% of my prose got rid of a lot of . . . well . . . #$%@ . . . . and what I created the day after existed at a higher, more sophisticated level than anything that had come before. The same is true of legal practice. It's not, after all, the bare "facts" that determine whether you will win or lose, but what you make of those facts – how you “write” a persuasive narrative that is important. Don't save anything. Ever.
Q: What if a lawyer wants a caucus-only mediation; how will visual aids assist in that process?
A: As a mediator in full-time practice for four years, I tell attorneys that I need visual aids even if the other side doesn’t see them. I settled one case when plaintiff's attorney drew a simple pie chart for me that illuminated everything suddenly. “Have you shown it to the other side?” I asked. "I just made it up right now," he said (cf. save nothing; you'll make up something better later). "May I show it to the other side?" "Yes of course." It settled the case. We mediators do carry arguments, points of view, opinions, etc to the other side. Your opponent really doesn't want to be surprised at trial any more than you do. Give one another the opportunity to know everything so that no one has to hang their head in shame on day 2 of the jury trial, remembering that even if you’re the one who seems to be winning, there’s always the appeal, the re-trial, the re-appeal and the effort to collect the judgment. Breathe in, you win, breathe out, you lose, breathe in . . . out . . . in . . . out.
Q: Should lawyers incorporate color photographs or graphics in their mediation briefs?
A: Color? Only when it's useful in illustrating a point. I made color-coded charts of insurance coverage layers when I was handling environmental coverage disputes. I took those charts to every oral argument so that the Judge spent the entire hearing looking at my view of the world. I'm convinced to this day that those charts won me the case on summary judgment. I color-coded the charts because it was the most vivid way to illustrate the points I had to make. I understand from jury consultants that you can also influence people with color – this is a Madison Avenue truism but that’s going a little too far unless you’re litigating something worth a few hundred million dollars.
Here’s the bottom line. I need you to help me help you. As a mediator, I've got a few hours to understand a case you've been working on for years. Give me charts, graphs, time-lines, party-relationships, difficulties with your clients, color, drama, surprises, action – anything that will help me get your case so I can help the other side weigh the likelihood of failure. After I get it, I become very useful in helping to create creative impasse-breakers. If I'm still trying to get it by hour three, there’s something wrong and usually I will ask you at that point – “I’m not serving you in the way you want to be served; please help me figure out how I can be of better use to you.” And if your mediator doesn’t ask you that question, be sure to tell the mediator right then and there that he/she isn’t getting it.
You can read Vickie's post on visual aids at mediation here.
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