The use of demonstrative or visual aids at mediation is more widely accepted by lawyers and mediators since the legal profession began its rapid embrace of technology. Arguably, the pandemic accelerated this implementation. The technology adoption started with the exchange of electronic mediation briefs, improved access to scanned documents, and the use of video software, like Zoom and Teams. Now, counsel more commonly use Power Point or slides and electronic documentation in their introductory remarks, and present demonstrative aids in their Mediation Briefs to bolster arguments by visual communication.
Through technology, counsel can now utilize a variety of demonstrative aids in mediation. Demonstrative aids can include videos, photos, diagrams, maps, images, or other documentation, and are particularly useful in specific areas of law like personal injury (surveillance footage, accident reconstructions), criminal law (video evidence of a crime), intellectual property disputes (product drawings and dimensions, comparative drawings illustrating copyright infringement), construction law (construction drawings or architectural specifications), etc.. Regardless of how they are used, visual aids are impactful. Visualization increases recall and can evoke powerful feelings in the viewer, but moreover, they are powerful instruments to support a position.
Demonstrative aids distill evidence which helps each party, and the mediator, understand the strengths and weaknesses of the case. They can help explain complex processes, chronology of events, how the event occurred, and connections between parties and participants. They can support or weaken claims for damages or statements made during discovery, prove or disprove claims, or better quantify the loss. They can highlight application of the law or a difficult legal issue. In his book “Knowledge is Beautiful”, David McCandless explains the importance of visualized data:
“[u]nderstanding really is the key. When you understand something, you’re able to perceive its structure: its connections, its relationships, its significance relative to anything else. How it fits. You see-feel-intuit the fit. You know it. You know?” (Introduction).
Understanding may be the key to a successful outcome for the client. Effective use of visual aids can help the mediator and opposing counsel connect the dots and gain an understanding of the case, losses and damages.
Jamie Dunbar, a Mediator with Global Resolutions Inc., discusses the use of technology and demonstrative evidence at mediation suggesting that mediation briefs that, “do not do so may be blunted as to their effectiveness.”[1] Dunbar suggests that in personal injury cases, demonstrative evidence is expected to illustrate the damages sustained, the extent of the injuries and the cause of the injury.
Another (anonymous) mediator interviewed suggests they enjoyed one counsel’s use of an introductory video at the beginning of the mediation. Often this counsel would include witness interviews in their video. The benefit of using this type of visual aid is that opposing counsel can see what the witnesses would say and whether those statements were impactful. This mediator did suggest that sometimes the videos told a great story about the plaintiffs and led to accelerated settlement. At other times, the videos could be dismissed as a little hokey and insincere.
A hokey demonstrative aid will not help any party to the mediation. Most humans have built-in baloney detectors and can identify when the visual aid is not providing much value. Another negative impact is that the introduction of the visual could simply end the mediation, leading one party to walk away in frustration or anger. Also, counsel may not have the technological skills or instinct for design to create a clearly articulated visualization.
Counsel should consider their strategy when introducing visual aids at mediation. Supports to the Mediation Brief, like existing photos or other documents provided in Affidavits of Documents and readily available to all counsel prior to mediation will likely not be an issue at the mediation. However, if counsel is creating a demonstrative aid, like a Power Point presentation, video or infographic, counsel should consider when to provide it to opposing counsel: prior to or during the mediation. It is all a matter of strategy.
Providing the visual aid prior to the mediation allows counsel full access to their opponent’s position, which could lead to a better settlement, quicker mediation or illustrate strengths in the position. It allows opposing counsel to absorb the information and potentially reach out to their in-house client for better instructions if the visual aid is impactful. However, this strategy also allows opposing counsel to intensely scrutinize the aid, poke holes in it, develop an opposing strategy or allow them to better criticize the information used and how the illustrative device was created. If developed well, it could be compelling and lead to a more successful mediation.
Providing the demonstrative aid at mediation, during the introduction or even afterwards, can lead to eye-rolling and an abrupt end to the mediation – then developing the demonstrative aid was all for nothing.
Regardless of which strategy counsel uses to introduce the demonstrative aid, a lack of clarity or a misleading visual aid can cause confusion, which could waste time and lead to a poorer outcome for the client. It is incredibly important to effectively test the demonstrative aid prior to the mediation to be sure that it will have the positive impact on the users that is intended. For the visual aid to be compelling, the design and function must be compelling, not just for counsel and their client.
Visual tools can bolster many cases at mediation but they must be used effectively and strategically. As McCandless puts it, when the visual tool is effective and creates true understanding, “You know it. You know?”
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[1] Jamie Dunbar, “Mediation Brief” (Lexis: December 12, 2022).
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