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Opening Their Eyes and Ears: Effective Mediation Presentations

Opening Their Eyes and Ears: Effective Mediation Presentations

Source: Business Litigation Committee Newsletter
Date: September 2004

Mediation has emerged as the preferred dispute resolution process. Preparing for mediation is just as important as preparing for a trial. Making an effective presentation is just as important as making an effective opening. Though there are crucial differences between mediations and trials, there are certain key similarities. In both cases, a critical component is effective communication of information to others. Participants in mediation should take full advantage of the various tools available to assist them in communicating information in mediation. Graphics grab attention and communicate more effectively and efficiently than mere words. Proper use of graphics will aid the parties and their counsel in reaching an optimal settlement in mediation.

When parties are unable to resolve a conflict by direct negotiation, they can enlist the assistance of a mediator to help facilitate communications and to aid in the exploration of settlement possibilities. The mediator is not a judge or an arbitrator. The mediator does not have power to decide the outcome of the dispute. The mediator convenes a process during which the parties can exchange information and explore settlement options in a confidential setting. Mediators will permit the parties to make presentations in whatever manner the parties think will be most effective in helping to reach an agreement.

Mediation increases settlement opportunities when the parties have an effective exchange of relevant information. The mediator benefits as well by knowing key relevant facts. These facts include knowing who the parties are, understanding the interests and objectives of the parties, and learning something about the nature of the business or other context in which the dispute arose. These facts create a context from which the mediator can work with the parties to attempt to settle the dispute. These facts are usually developed in presentations by the parties in an initial joint session during the mediation.

Presentations in the initial joint session provide a unique opportunity to communicate directly to the principals involved in the dispute. In many cases, this may be the first face-to-face meeting with key decisionmakers. There may be new parties that have been brought in a special effort to attempt to resolve the dispute. Even when the individuals present in the mediation were directly involved in the underlying dispute, the mediation session provides an excellent opportunity to present the facts from the unique viewpoint of each of the participants. Doing so may present new information that will change the views of the other side. For example, understanding the strength of the plaintiff 's case is a critical component in any defendant's evaluation of settlement options.

The mediator can create the moment, but does not control the method by which information is exchanged. In some cases, the most effective method may be to encourage the parties to speak directly to each other. In many cases, the attorneys representing the parties will make a presentation placing the facts in a legal context and discussing the applicable legal principles. Whoever is participating in making the initial presentation should consider what will be most effective as an aid to communicating information to the other side and to the mediator.

Tone and Temperament

The initial presentation may set the tone for the rest of the mediation day. Though both trials and mediations use presentation skills, the tone in mediation is usually quite different. Adjust the volume and the tone of your voice to set the atmosphere that you think will be most conducive to an effective settlement discussion. Histrionics, table-thumping and name-calling tend to provoke negative reactions and reciprocal responses. Your appeal may be directly to the decision-maker on the other side, who will respond better to a reasoned discussion than threatening tone and predictions of dire consequences.

Timelines

Consider using a timeline to help the parties focus on the sequence of events. A timeline can be created on the fly by using a large notepad, magic markers and an easel. It can also be prepared in advance with colorcoding and short descriptions of key events. Since the purpose is to communicate information, it should contain dates and facts important to both sides. You may not know all the dates and facts that are considered important by the other parties. You can take advantage of that by providing an opportunity for others to supplement your timeline. Doing so may encourage cooperative behavior which may become a building block in reaching a settlement.

There are many ways to create a collaborative timeline. You can distribute individual copies and encourage everyone to make additions or corrections. You may wish to have one prepared on a mounted foam board and provide markers to the other side to add additional facts and dates that they believe are also relevant. If you wish to preserve your original timeline, you could use a clear plastic laminate overlay.

Organizational Charts

Where the case involves organizations with layers of reporting and responsibility, you should consider organizational charts that will help the parties visualize these relationships. These can be shown with names, titles, and a summary of their involvement in the case. Like the timeline, the org chart can be used as an opportunity for collaboration. This can be of help to both sides by eliminating confusion and mistakes about underlying neutral facts.

Document Highlighters

Many cases involve documents. These may be the contract or other legal documents, correspondence, memoranda, product literature, marketing brochures or any other writing that contains pertinent information. Sharing those documents with the mediator and with the other side may help your presentation of the facts. In most cases, there are particular phrases or sentences that deserve special attention.

Consider various ways to highlight that information. One simple method is simply to highlight the relevant text with a magic marker. You may do so on the copies that you hand to the mediator and to other parties. You may wish to enlarge and mount on foam board certain key documents. You may wish to enlarge or highlight particular text in such a document.

PowerPoint and Graphics

Summarizing and presenting complex factual information in a short time is a challenge that business people face on a routine basis in our fast-paced society. Those who face the challenge of making presentations to a Board of Directors or to a busy executive know the need to package and to present information clearly and concisely. Sales and marketing people have great know-how in making effective and memorable presentations. In the business community, presenters routinely rely on the use of PowerPointTM, a notebook computer and a projector. This allows the presenter an opportunity to organize the basic facts with bullet points, to add timelines, org charts, and images of key documents. The key documents can be highlighted or have portions enlarged for emphasis and clarity. Using digital cameras, one can add pictures of people, places and things. Consider using these tools in making your mediation presentation.

Graphical aids to a presentation can be used in many different ways:
  • Individual hand-outs
  • Dry-mounts on an easel
  • Handwritten on a sketch pad
  • Computer presentation with a projector
  • Color or black and white
  • Copies of documents with "blow-outs" of key phrases.
Conclusion

Selecting the right combination of tone and technique for your mediation presentation is a matter of judgment and experience. There is no one right answer. Mediation does provide an opportunity to communicate your message with few limitations except your imagination. Engaging the ears and the eyes of everyone is your goal. More effective presentations will assist the magic of mediation.

James E. McGuire, Esq., JAMS, Boston Massachusetts. Attorney McGuire is a neutral providing mediation and arbitration services to the business community. Attorney McGuire also teaches Mediation and mediation advocacy at law schools and in law firms. He can be reached through the JAMS website: www.JAMSADR.com or by email: jmcguire@jamsadr.com.