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Mediation Opening Statement: More Considerations: PowerPoint

May 16, 2011

My March 1, 2011 Blog on “Mediation Opening Statement:  Some Initial Considerations, continues to be one of the more popular subjects followed on my blog.  Accordingly, I have been paying closer attention to opening statements in my mediations to pass on more observations and ideas for you to use or build upon.

Here is another recurrent issue:  The use of PowerPoint in mediation opening statement.  Should it be used?  If so, when? how?  How is it most effective?  What are its strengths?  What are the weaknesses?

Clearly all have become sensitized to visual presentations.  Military instructors have known for years that you remember far more that you see than what you hear.  All of us spend more time in front of a television than a radio for news or programming.  And the younger your audience, the more likely they are even more  heavily influenced by what they see than what they hear.  Witness the meteoric rise in Blackberry and iPhone use, preceded by visual games of all description.

Accordingly, whether at mediation (trial or seminar), it is the wise speaker who keeps (or regains) his audience’s attention with the proper use of any visual aid.

But, increasingly, PowerPoint presentations are being relied upon as many speaker’s only visual aid.  Worse, it has increasingly become the totality of many presentations.   Have you ever found yourself reading the text of the speaker’s slide faster than the speaker?  Worse, have you ever wished the speaker had simply mailed you the slides and saved you the time of attending the presentation?

The critical question for mediation, however, is not whether Power Point (or any other visual aid) should be used in opening statement,  but rather,as with any visual aid,   how and when and what subjects  to use with any PowerPoint presentation in mediation.

Your first consideration, if you choose to use PowerPoint,  is how to better use it?   It is increasingly common  to see PowerPoint used simply as  the speaker’s text for the audience to read along with the speaker.    I submit that is NOT a wise use of such a powerful advocacy tool.

Being old school,  I personally do not care for any visual aid that totally removes the speaker from the primary focus of any verbal presentation.  The use of selected visual aids to keep the audience’s interest and attention and to make an important point, is central to any modern presentation.  But, it is dangerous to lose your audience totally to reading written words on a screen.  Losing the emotion of speech to merely seeing written words is effectively losing your best tool of advocacy.

And, unless you are not careful with your spacing and pacing of your PowerPoint presentation, those who you want most to follow your advocacy and train of thought, will instead be simply reading your slides!

Lesson?  Use PowerPoint to highlight your presentation, not be your presentation.  Keep your audiences’ attention by varying your use and timing of this important tool during your speaking along with other types of speaking and visual aids at your disposal.

Some examples?  Use of PowerPoint to group issues,  present timelines, feature selected photographs, highlight maps or diagrams, show excerpts of key depositions, and to present excerpts of jury instructions and verdict forms, are strong uses to consider rather than merely as a crutch to your speech outline.

And, in my opinion,  exhibiting Florida’s interrogatory or other verdict form, either by PowerPoint or by blow-up, is one essential exhibit that should never be omitted from your opening, for either side.  But, never, never replace your speaking advocacy solely with the full text of your presentation.

Another preliminary question also arises in the timing of your mediation PowerPoint presentation.   Isn’t it realistically too late to really make a difference if the first time you share your expensive PowerPoint presentation is only as you begin your mediation?

Like so many other pre-mediation preparation factors, I strongly believe the thrust of your best presentation must be shared well in advance of mediation for best result.

I also believe the best opening statement is really just your highlighted reiteration of what you have already and much earlier presented to your opposition.  But, at least this time, instead of only representatives, you should have the actual party-opposition present for your opening statement, who may be seeing  your presentation for the first time.   What better time, therefore, to hit only the highlights of the strengths of your position.

Those of you who mediate with me know how much I preach early advanced disclosure.

Whether you are the Plaintiff attempting to establish a basis for authority to be had at the mediation, or a Defendant attempting to establish the basis for your defense or even affirmative defense, I strongly believe that early advance  disclosure of at least most of the strength of your position is critical to your success at mediation.

Of course, you may need to withhold for strategic purposes some selected matters should mediation fail.  But as soon as resolution seems available, I submit holding back for a later surprise disclosure is similar to the air above an airplane or the landing area behind it.  It is useless.

Powerpoint is the same.  If you really are going to “wow” your opposition at mediation, why would you not want to share that same “wow” with them when it really can be fruitful.  Any change of position is never really a change of position on the same facts known.  It is really a change because of a change of fact (or law in these circumstances).  But any change requires time to recognize, consider, evaluate and then alter your position based on new fact or law.  Opening Statement, I submit, is usually much too late.  At least for that mediation.

Lesson?  Send the Power Point to the opposition before the mediation.  Let the decision makers on your opposition’s side have time to consider your presentation.

Then, at the least, your Power Point at opening will need be only a reminder of the strengths of your position and a properly used tool for keeping your oppositions’ attention.

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