Are Mediation Graphics the New Trial Graphics?

by David Rosenthal, Mar. 31, 2016

When I began my career in litigation graphics in the mid-90’s, the use of professional quality graphics at trial was not ubiquitous, as it is today. Some trial lawyers felt it was reserved only for larger or more complex cases. Some “old school” attorneys were resistant to new ways. Many simply were not yet aware of just how essential a strong visual presentation is to a jury. Of course nowadays, trial graphics are a must.

Today we hear similar reasons against using visuals at mediation. Some attorneys have cost concerns, others do not want to “show their cards,” still others feel their opposing counsel is unreasonable so they expect that a case is unlikely to resolve before trial. These reasons may be legitimate, but there are compelling reasons to consider graphics to be a key element of every mediation.

Resolving your case at mediation is more common than at trial

Statistics show that fewer cases make it to trial each year. A U.S. Department of Justice study found that trials account for about 3% of all civil dispositions in general jurisdiction state courts.1 Similarly in federal courts, the percentage of civil cases disposed of by trial is only 1.8%.2

What this means is that mediation may be your first – and last chance to persuade the necessary parties. The use of visuals is one of the best ways to make a mediator – and hopefully your opposing counsel – see that the facts are on your side, and that your client’s version of the story is powerful.

Demonstrating you are trial-ready maximizes settlement value

Imagine you play in a recreational basketball league. During pre-game warmup, you notice that the opposing team looks disorganized, inexperienced and sloppy, while your team is focused, practiced and prepared. You hit most of your shots and make crisp passes in your drills. Which team do you think has the psychological edge? Which team is in a better position to prevail?

Although it may seem obvious, when you go to mediation, you want to be like the prepared, cohesive basketball team. An oft-stated axiom is that fear of loss is a greater motivator to act than hope of gain.3 Showing the full strength and weight of your case at mediation may be the easiest way to convince your opposition to settle on favorable terms. Even if the case doesn’t resolve at that point, you are now way ahead of the game in terms of prepping your visual presentation for trial.

Adhering to rules of evidence is not required

At mediation – unlike trial – you are typically not constrained by any rules of evidence pertaining to demonstrative exhibits. This means you have the freedom to tell your story in whatever way you deem to be the most effective. This may be a good time to be more aggressive with your graphics.

Most lawyers’ goal at mediation is to obtain the most desirable resolution for their client. Typically, the other side will be more likely to agree to an optimal settlement if presented with visuals that convey cold, hard facts, rather than those that inflame, exaggerate, or cherry-pick. As Edward Tufte, considered the guru of information graphics, has said, “the use of corrupt manipulations and blatant rhetorical ploys in a report or presentation … suggests that the presenter lacks both credibility and evidence.”4

Cost savings

Well-prepared graphics are an investment. Given that the vast majority of cases settle out of court, the cost of a strong visual presentation package for mediation is likely to be more than offset by a favorable settlement and the cost savings to your client of avoiding lengthy litigation. No one wants to give up fees, but you may appeal to your client’s wallet when you settle a case earlier on favorable terms.

1 Lynn Langton, M.A. and Thomas Cohen, Ph.D., “Civil Bench and Jury Trials in State Courts, 2005,” U.S. Department of Justice, Office of Justice Programs (rev. April 9, 2009)2 Patricia Lee Refo, “The Vanishing Trial,” American Bar Association Journal of the Litigation Section (Winter 2004)3 See, for example, Brian Tracy, “Becoming a Master of Persuasion,” Entrepreneur Magazine (November 2007)4 Tufte, Edward R., Beautiful Evidence, Graphics Press LLC, 2006

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