Gather Evidence

Before the mediation, you’ll want to spend some time thinking about what types of evidence you can use to make your points. If the word “evidence” conjures up images of Perry Mason shouting “Objection!” set your mind at ease.

Because no evidence is excluded, you might think this would make mediations go on endlessly. Just the opposite is true. With no technical objections and arguments over what can and can’t be discussed, the parties say what they want, show what they want, and usually, with the mediator’s help, move on fairly quickly to try and craft a mutually acceptable solution.

1. The Role of Evidence

As you consider what types of evidence you might bring to the media­tion, think about why you want to use it. A piece of evidence is worth bringing if it will:

• help you tell your side of the story in a clear and persuasive way

• help show the other party that her position on an issue is based on a mistake or misperception

• help establish the extent of losses or injuries you’ve suffered, or

• help you reach a settlement by showing that your proposed resolu­tion is fair and workable, or by showing that you are likely to win in court if you don’t settle.

On a strategic level, bringing evidence to the mediation can increase your bargaining strength by showing the other party you have a strong case. It says, in effect, “You should settle with me in mediation, because if I am forced to take you to court, this evidence will convince a judge that I should win.” (In some cases, you may want to hold back evidence, to keep part of your strategy secret in case you do end up in court.

Unless your mediation rules say otherwise, you are free to bring to the table almost anything and anybody that will help you present your case. This can include:

• witnesses or letters from witnesses

• photographs

• drawings

• maps

• tape recordings

• medical bills

• pay stubs

• receipts

• apartment or condominium rules

• repair estimates, and

• letters from friends and neighbors.

As long as the particular item will help demonstrate that your position is fair or your proposed solution is reasonable, you should bring it along. Here are some examples:

• At a California mediation program that handles disputes about noise from barking dogs, owners often bring in the offending beast, especially if it’s relatively benign looking.

• A man who wanted to show that his basement was damaged by water pouring off his neighbor’s roof brought photographs, taken during a rainstorm, of the neighbor’s gutter angled at his house and water running onto his basement wall. He also brought photos of his water-filled cellar.

• When the owner of an auto repair shop wanted to show that a customer should have clearly understood that he would have to pay a storage fee if he didn’t pick up his car, he took a huge sign off the front of his building and brought it to the mediation. The sign said, “Storage Fee: $1 per day after 30 days.”

• When the co-owner of a “quick print” printing business wanted to illustrate what he claimed was irrational behavior by his partner, he brought to the mediation copies of memos from the partner that contained disjointed, contradictory, and ranting statements.

2. Types of Evidence

To best present your position in mediation, you should bring the most persuasive evidence. The best evidence is objective and unambiguous. Much of this is just common sense. Think about it—are you more likely to believe your opponent, who says “My back hurts when I bend kind of like this,” or a doctor’s report detailing the damage your opponent suffered to his sixth and seventh vertebrae? In the same way, an invoice documenting how much you paid to fix your car—and marked “paid” by the repair shop—will be more persuasive than your statement that you paid $500 to get your car repaired.

Here are some common types of evidence, from most persuasive to least:

• Real or Demonstrative Evidence: The actual item in dispute. For example, the BB gun you claim your neighbor’s child used to shoot your dog; the shutter with bubbled paint you claim the painter forgot to prime; the suit from the cleaners, with bleach stains. If you can bring in the physical item at the heart of the dispute and its condi­tion supports your argument, it will help others understand the problem from your point of view.

"YOU SHOULD HAVE BROUGHT THE BASSOON"

A college music student, injured in a car accident, sustained damage to her shoulder muscles. This was especially troublesome as she was a bassoonist and hoped to play professionally as well as teach. Her shoulder injuries prevented her from holding the bassoon in proper playing position for more than a few minutes at a time before the pain forced her to stop. Among other things, she sought money from the other motorist’s insurance company for lost future wages if she re­mained unable to play her instrument.

At the mediation, she described the bassoon, how it rests against the shoulder, and the importance of strong shoulder muscles to hold it. After a mediation session that lasted eight hours, the case finally settled and the woman got a reasonable amount of money for her lost ability to play. After the mediation, the mediator told the music student, “If you’d really wanted to show the insurance people how hard it is to hold your instrument, you should have brought the bassoon. If you had, I think we would have been out of here hours ago.”

• Live Testimony by a Witness With Knowledge of the Facts: Someone who actually saw or heard the incident underlying the dispute. For example, in a dispute with an insurance company over whether a faulty wiring system might have caused a fire in your home, testi­mony from one of the firefighters who responded to your 9-1-1 call and saw that the problem came from a short in your wiring system would be highly effective.

• Documentary Evidence: Written or printed evidence. Here are the most important types of documentary evidence:

✓ Public Records: Government documents carry a lot of weight because of their official status. Examples include police reports, copies of your town ordinance (usually available from the local public library or law clerk) showing allowable noise levels in your community, or a brochure distributed by the city explaining rules for putting trash in front of your house.

✓ Business Records: Unless contradicted, a record routinely made in the ordinary course of business is usually considered to be reliable. Common examples include a hospital’s or doctor’s medical report; your receipt for a purchase at a hardware store; the organization chart drawn by your company’s personnel department; the rules of your apartment building issued by the building manager when you signed your lease.

✓ Photographs, Maps, and Other Reliable Written or Printed Materials: Obvi­ously, these are more believable if the maps or other materials come from reputable companies, or if something else about them helps show their authenticity. For example, if the photos have a date of printing on the back (ask the developer to date the paper on the back so you can prove they are current photos), it helps to show they were taken before that date.

QYour own photographs can be convincing evidence. Your photos of the matter in dispute (an ugly fence, for example), can often be a big help. But be sure to take them from the point of view that matters most to you. In one case, for example, a homeowner complained of a junked car parked on his neighbor’s lot. At the mediation, he presented color photos of the old, rusted car that he had taken from his kitchen window, the vantage point from which he had to look at the car every day.

✓ Private Writings: These include written statements from family, colleagues, or neighbors about your dispute, such as a neighbor’s written statement that “the Gallaghers’ dog barks at all hours of the night.” These writings carry less weight than other types of evidence because the writers are not present at the mediation, but they can still be very effective. And you can make them more persuasive if the writers will have them notarized, proving that they really wrote them.

• Expert Testimony: A witness such as a doctor, auto mechanic, or carpenter—anyone who, by training or experience, has special knowledge in a field and can render an opinion on some important aspect of the dispute. When the mediator has no special knowledge of the subject in dispute (such as a major engine repair or replacing a bearing wall ), this kind of witness can be especially helpful—the better informed the mediator is about the subject of the dispute, the more creative he can be in helping the parties reach an acceptable solution.

Evidence Examples

Evidence Examples, continued

These are just a few examples and suggestions—the general rule is that it’s a good idea to bring anything that might be helpful to the parties and/or the mediator.

3. Holding Back Evidence

Once you’ve figured out what evidence will best help you tell your story, you have a strategic decision to make: Should you reveal it all at the mediation, or hold some of it back, in case the dispute ends up in court? As a general rule, your best strategy is to bring everything to the media­tion, to enhance your chances of reaching a good settlement. Even if the mediation proves unsuccessful, the evidence you held back may have lost some of its power by the time you get to court. The other party may have found out about the evidence through pretrial investigation and prepared ways to counter it. And of course, if a live witness is involved, that person may have died, forgotten the incident, or moved away.

However, there are a few situations in which it makes sense to hold back evidence in mediation, particularly if revealing it would help the other side in litigation later without moving your dispute closer to a settlement. For example, if you have a claim against a manufacturer for making an unsafe product and someone from the company has leaked you an internal memorandum showing that the company knew the product was unsafe, you might want to keep it secret. If the case does not settle, you can use it at trial to undercut the company’s legal posi­tion. Disclosing it now would allow the company plenty of time to prepare a defense against it. If your case involves an issue of this impor­tance, you should probably get some advice from a lawyer or law coach about what to do.

You may also choose not to divulge some evidence because of the reaction it would trigger from the other side. For example, say your claim is for wrongful termination against a former employer. You have evidence that your boss occasionally used drugs at work, but you know that she knows of an affair you had with a married coworker. In this case, maybe you shouldn’t cast the first stone.

If you are hesitant about divulging evidence, talk to your lawyer or law coach before the mediation. (See Section E, below, and Chapter 13.) Or, you can ask the mediator (during a private caucus) how the other side might react if you reveal a particular piece of evidence at mediation, or later at a trial or arbitration. The mediator can probably give you an educated opinion, based on the case and the other side’s position, and you can make your decision accordingly.

D.