The Effective Use of Visual Aids in Mediation

Nancy Hudgins has a great post discussing the benefit of the use of visual aids in trial that would also work in mediation. As I mentioned in my comment to her post, being a visual person myself, I encourage the use of such aids. In my confirmation letter, I even request that the parties bring “any physical evidence or documents you believe would support your position and help persuade the other side.”  As my current practice involves mainly court-referred cases where one or both parties are unrepresented, it is rare.

But on occasion, I am pleasantly surprised. I find there is nothing more powerful than a visual representation of what is at issue.  In my early days of practice as a defense lawyer, we received numerous “settlement packages” from plaintiff’s firms.  They contained pictures of the plaintiff before the injury with their family or playing sports or simply being an average Joe or Jane; then pictures of the damaged vehicle and pictures of the plaintiff’s injuries; and finally a itemized spreadsheet of the medical bills, lost wages and other economic damages.  The good ones would tell a story without much in the way of narrative.  We could tell quickly which cases needed settlement.

I remember one particular trail where the plaintiff’s lawyer was extremely effective in his use of a demonstrative aid.  The defendant had struck a police officer when he lost control of his car on a snowy and icy interstate highway.  This being Atlanta, such conditions are rare occurrences and the local news media had broadcast numerous warnings on radio and TV to stay off the roads unless there was an emergency.

The defendant was an immigrant who claimed he did not speak English at all and required a translator for his deposition and at trial.  He claimed he had not heard any warnings and if he had, he would not have understood them.  He had no real “emergency” to attend to that Sunday morning, he was simply going to church.

The testimony proceeded as expected, slowly, with the plaintiff’s counsel asking the interpreter the question, then having it relayed to the defendant.  In the middle of testimony, the plaintiff’s counsel turned to look directly at the defendant and quickly asked him to remove his wallet and show him his driver’s license.  Before the interpreter could relay the question and the defense counsel could object, the defendant leaned over, removed his wallet and started to hand over his driver’s license.   Plaintiff’s counsel smugly continued questioning the defendant directly.  It had its desired effect because the defendant got hit with a fairly serious verdict.  (For the record, I was counsel for another party in the case, not the defendant).

Of course, this particular tactic might not work in mediation, but every party should be aware of the impact such aids have on juries, judges and opposing parties.

Welcome John Lassey!

A belated welcome to the League of Web Log Authors to John Lassey, author of Mediation Stuff. I am very glad that John has joined the ADR debate, because his blog will focus is on

those matters where the primary motivation for the participants is money. . . . [i.e.] situations where the main (if not the only) question is “how much?” and the pie tends to look the same at the end of the process as it did at the beginning.

Most of the cases I am currently dealing with are of just this type. I am looking forward to reading through his site and opening a dialogue on how to deal with these one-dimensional commercial disputes.

Good thing these legislators are on the ball.

“TALLAHASSEE, Florida — The Florida Senate today debated and passed an amendment to impose a $60 fine on Truck Nutz, the novelty vehicle adornment attached to trailer hitches that resemble the dangling southern end of a northbound bull.” (Apologies for the bad pun and be forewarned, there is a picture of this lovely item so humorously described in the opening sentence of this new article.)

While I find these vehicular adornments tasteless, they are no more or less tasteless than say, “silhouettes of nude women on truck mud flaps or decals depicting a small boy relieving himself on another truck logo”, as pointed out by seemingly rational Florida State Senator Steve Geller. My inner Hugo Black believes that attempting to ban these delightful appendages would violate the First Amendment.  There is no right to be free from insult or offensiveness.

And to tie this in (somehow) to dispute resolution, it should be noted that one of the opponents to the bill, Sen. Jim King of Jacksonville, “said he had a set on one of his vehicles, which he described as ‘all pimped out.’ They are no more than ‘an expression of truckliness,’ he said, although he’d acceded to his wife’s request to take them off.” In the end, Sen. King proved he was, indeed, a smart and wise man.

What It Takes To Be A Great Mediation Lawyer – from Geoff Sharp

Geoff Sharp recently made an interesting observation about an excellent series of posts from Tennessee lawyer John Day called What it takes to be a great trial lawyer. (It’s lots of great info, so I’ll overlook the fact that John has two “Part 10’s”).

Geoff posits that the same qualities that make a great trial lawyer make a great mediation lawyer, as well.  I agree that the lawyers who are most successful in mediation exhibit several of these qualities/skills, including (as Geoff also notes): The ability to pull the trigger; the courage to tell the client the truth; and the ability and willingness to undertake (and share with the client) a cost-benefit analysis throughout the litigation.

An Ethical Dilemma?

I had a mediation today that concerned home repairs and renovations. While I was trying to establish rapport, I revealed to one party in caucus that my garage door opener motor had recently gone kaput and I needed to replace it. The party immediately offered, “I know a great guy who does installations, you should give him a call.” For a split second, I thought about saying, “Sure, give me his number.” I thought better of that and politely declined.

On further reflection, would this have been so terrible? Would it have been so unethical to accept his expert recommendation? I could see how it might appear that I was violating my role as neutral by forging an apparent business relationship with that party. When the roles have been reversed and parties have asked if I could refer them to competent counsel, I’ve explained that I could not.

The part of me who does not want to spend 7 hours in the garage cursing at instructions translated from the original Chinese by a computer program sees it much differently.
UPDATE: It seems my words were prophetic!  It actually took me 7 hours to install the new garage door opener.  Good thing I had a cancellation and an entire day to get it done.

Good News, Bad News…

Some of you may have noticed a precipitous drop in my post rate in the last 6-8 weeks. For those of you who enjoy my ramblings and nuggets of information, it is a good news/bad news situation (for my wife, it is only Good News).

The good news, of course, is that I’ve been getting more cases. I joined the roster of a very active local court circuit consisting of several exurban counties. The courts that comprise the circuit have a combined caseload equal to that of any one of our metro counties. That means more work.

I am also working toward completing my requirements to become registered as a domestic mediator. I have to observe one more case and then co-mediate two others. After that, registration is a mere formality.

I am trying to handle traveling to these cases, mediating more frequently, continuing to market my practice, maintaining enough time to get on the (bike) saddle and ride, and committing time to blog. Unfortunately, blogging is taking a back seat. I am not giving up on blogging by any stretch, but where I was posting 3 and 4 times a week, I now may only post once a week. Don’t worry. I’m not going anywhere.  I’ll still be as opinionated as always.  Just in smaller, less frequent doses.

Have a great weekend.

Debbie Does Divorce – A Short Video About Divorce Mediation

Reading through my morning news Google Alert, I clicked on the link “Divorce Mediation:Successes and Failures“.  Expecting a typical text blog, I was a little surprised to find a very professional looking video.  I had to chuckle a few times as the presenter has a thick New Yawk accent (I’m from New Jersey and it reminded me of some of my relatives) and referred to herself as the “Chief Executive Girlfriend.”

One you get past the fact that it is not really an episode of the Saturday Night Live Classic skit  “Coffee Talk with Linda Richman”, and is meant to be a helpful resource for those going through a divorce, I found the video a bit short on advice and long on two somewhat interesting but not very helpful war stories from the mediator being interviewed.  Hopefully, the readers of this blog will click through to the mediator expert’s page and read through her much more informative posts, here, here and here.

Not the Type of Alternative Dispute Resolution We Advocate!

Two lawyers who apparently haven’t learned to use their “big boy” words resorted to slapping and hitting each other in an Oregon Courthouse lobby.  The details are fuzzy, but attorneys David Lawrence and Aaron Matusick began shouting at each other as they left landlord-tenant court.  Witnesses said that one attorney then slapped the other, who responded with a punch to the first lawyer’s forehead.

One of the local judges called both men into his chambers for “a talking-to.”  I wonder if he put the guys in time-out or asked one of them to go cut a switch.  My guess is that he threatened to reach under his robe and take his belt off.

Obviously, this isn’t the type of Alternative Dispute Resolution that my fellow bloggers and I advocate.

Great Series on Mediation Preparation for the Advocate

Bay Area Mediator Nancy Hudgins has an excellent series for the mediation advocate on how to properly prepare for mediation. She takes the approach that since “more than 98% of cases do NOT go to trial,” the mediation advocate should set aside meaningful time to mediation preparation. Even though I am no longer actively practicing, I’m looking forward to her upcoming posts on the subject.