DEMONSTRATIVE EVIDENCE
No experienced lawyer would go to trial without demonstrative evidence or illustrative aids that effectively emphasize the critical factual or legal parts of his/her case. Such evidence can clarify or amplify the testimony of witnesses, make abstract concepts real and more vivid and make a case look stronger than it might really be. It is for those same reasons that demonstrative evidence should be used at mediations.
Whether the matter involve a business breach, an employment action concerning an allegedly wrongful termination, a property dispute or injuries caused by a vehicle accident or defective product, the facts can always be enhanced by the use of applicable correspondence, contracts, charts, pictures or, even more dramatically, a PowerPoint presentation of these same items.
Just as at trial, the demonstrative evidence to present at mediation is dictated by the facts of each case. Contractual controversies may need a time line as well as the documents at issue to make the facts more understandable. An employment suit may be more persuasively prosecuted or defended if the statements of parties and witnesses are highlighted. Charts and pictures of street intersections should be used to explain accidents. Photographs of claimed injuries are obviously helpful.
Finally, all demonstrative evidence should be legible (whether the writing be in a letter or picture), clear and presented in an organized fashion so that its desired impact is not lost on the mediator.
Copyright, Michael D. Marcus, December 2003