PowerPoint Presentations at Mediation: Overkill or Going in for the Kill?

Recently I spoke to a group of Florida attorneys on the topic of mediation advocacy. I strongly encouraged the group to prepare for mediation and opening remarks as if preparing for trial. I also touted the use of PowerPoint presentations during opening remarks/joint session and emphasized that opening remarks may be mere rhetoric and puffery for attending attorneys but, for the client audience, meaningful opening remarks with powerful presentation tools such as PowerPoint are extraordinarily persuasive and impressive. This is especially true if and when their attorney takes the bare bones, “no need to prepare, I already know the file like the back of my hand” approach.

After my seminar I was peppered with questions about the use of PowerPoint at mediation. Isn’t it overkill and a waste of time/money for the client on the hourly billing clock? How many attorneys are really doing this?

Rather than answer those questions based merely upon my own experience, I chose to turn to my colleagues at the Upchurch Watson White & Max Mediation Group for a roundtable discussion on the issue. The following conversation ensued…

Moderator, Sandy Upchurch: How often are you seeing PowerPoint being used in mediation opening remarks?

Kimberly Sands: Plaintiffs are more likely to use it than defendants. The
likelihood of its use increases with the complexity of the case and the amount
at issue.

Rod Max: In my experience a majority of attorneys are using it. More
Plaintiffs are doing it than Defendants but I do believe it is effective on both

Moderator, Sandy Upchurch: What are the benefits of using Power Point in opening presentations?

Kimberly Sands: I believe it is a useful tool in any case in which the parties feel there is important evidence that may not have been persuasively conveyed to the decision-maker.

Larry Watson: The benefits are obvious. In technical defect cases (construction, product, etc.) animated model slides can be essential to explaining how the failure occurred. They are equally indispensable with damage tallies and calculations.

John Upchurch: If done well, it conveys competence and thorough
preparation. If done REALLY well, it can strike fear in the heart of the adversary. What it all boils down to is failure to deliver a compelling and organized opening is a subtle signal to the other side that they have the upper hand.

Rod Max: I believe it is especially effective in complex factual or legal cases. It helps to simplify issues or magnify points. After all, a picture is worth a thousand words!

Moderator, Sandy Upchurch: Is it “overkill” to use PowerPoint during mediation opening remarks?

Michael Orfinger: It is overkill therefore entirely ineffective if it is exaggerated or overstated. That just results in the rolling of the eyes and the “tuned out” expression on people’s faces.
Moderator, Sandy Upchurch: What are your suggestions for the most effective use of PowerPoint at mediation opening session?

Richard Lord: Less is more. Speed and tempo are important. Just reading from the slides is bad. If it is just boiler-plate, entirely scripted or perfunctory, it is of absolutely no value and may actually be detrimental.

Kimberly Sands: It is important to consider your audience and edit your issues
and evidence. The presentation must not be too long or unnecessarily detailed.

Larry Watson: Don't make the opening presentation a matter of simply reading
the PowerPoint text. The presentations should illustrate and illuminate - not dominate or reiterate. Don't make the presentations too busy with complex diagrams. Simpler is better. Don't make the presentations too wordy with long textual quotes, narratives etc. Shorter is better. Don't make the presentations too plain - white on black is BORING. Put a little color into them, but moderately. Utilize consistent back ground, font size and color. Don't make the presentations overly decorative – these are serious issues, after all. Test your equipment in advance - don't delay start up trying to figure out how the computer works – you’ve just begun by annoying everyone in the room.

Moderator, Sandy Upchurch: What have you experienced as the most effective use of Power Point presentation during mediation opening remarks?

Richard Lord: The best I have ever seen had embedded video of sworn statements
and depositions - very compelling, very smooth, very prepared. Needless to say, very impressive and persuasive!

Kimberly Sands: The best are dynamic presentations, incorporating different
visuals and highlighting texts. It is imperative to utilize video depositions, animations, etc. if they exist. This is powerful stuff, self-explanatory stuff, stuff that you would never want a jury to see if you were the opposing party.

John Upchurch: One of the most effective uses I've seen of power point is when it is used in tandem with audio/video clips of the key witnesses' video depositions. It allows the presenting party to compare the opposing party's position in pleadings or paper discovery (perhaps shown on one or more slides) with the actual sworn testimony on that point by the witness (dragged and dropped into the next slide).

So, there you have it… The opinion of six highly experienced mediators regarding the use of PowerPoint at mediation. It appears the jury is in with a unanimous verdict. Run, don’t walk, to the bookstore to buy PowerPoint 2007 for Dummies then dash to your computers and get started.

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