LA Mediators

Mediators of Southern California

Mediation Matters-The Importance of Evidence in Mediations; Wendy W. Kramer, Esq., Mediator/Arbitrator

Attorneys and parties often arrive at a mediation hearing carrying the "Jenny Craig" version of their file; their discovery volumes and boxes having been left behind in their offices. They tote along an invisible box of evidentiary material which they will ask the mediator to convey with force to their opponent (and which they insist with passion and emotion) will destroy, demolish or otherwise impede the other side's case. Some probing into the existence and merits of this evidence is well worth the investment of time. It is important to make inquiries as to whether the item has already been procured and if so, where is it? Many times, the party will admit they have not been able to locate a witness whom they believe will testify in their favor, or a document which will provide impeachment, but they have "confidence" that when it comes time for trial, they will be successful. Simple inquiries into the logistics of what has been done thus far and what needs to be accomplished in the future to obtain the evidence (a reality check) often makes this posturing disappear as if by magic. Sometimes the converse will occur and it will be clear that they will be able to provide the needed proof, but simply need some additional time to do so.

When pressed for the actual document, record, photograph or piece of deposition testimony, and if the party has it with them, it is well worth taking the time to actually review it with the propounder. Often it either does not say what the proponent of the evidence sincerely recalled it to say and this is an "ah ha" moment for the attorney, client and/or insurance adjuster. Suddenly that tasty morsel of impeachment turns to dust and focus can then be restored to the actual issues and interests. It is also useful to discuss whether an important piece of evidence (testimony or documents) will actually get before a jury, due to some evidentiary problem which may attach to it .

Some probing questions to ask: Have they thought through whether there will be any objections to the proffered evidence? If so, how would they counter those objections? For example,

Is the evidence relevant? (Ev. Code Section 350)

Are there any foundation issues? If it is testimony - will the witness be competent to testify and does the witness have personal knowledge?

If it is a writing/document, can it be authenticated; If it is an expert opinion, will he/she be qualified to testify?

Is it hearsay?

Are there any other exclusions or limitations? i.e. Ev. Code Section 352 (more prejudicial than probative, etc...) This may come up when there are gory injury photographs, drug and alcohol issues which have no real bearing on the case at hand, unsavory character evidence, and any other mudslinging.

Although some litigators may initially be reluctant to expose a case to these types of inquiries ultimately, litigators (experienced or otherwise) should realize the benefits of exploring evidentiary issues in seeking mediated resolutions of their cases.

Views: 12


You need to be a member of LA Mediators to add comments!

Join LA Mediators

Comment by Jill Switzer on July 7, 2009 at 10:39am
I'm all for an evidence refresher as the sole topic for a meeting. Another possible topic on mediating litigated cases would be to hear from a jury consultant.
Comment by Kym Adams Director of CEDRS on July 7, 2009 at 10:01am
I think that is a superior idea especially when we are in our early planning stages of future meetings. Lets set on our calendar.
Comment by Bob Tessier on July 6, 2009 at 8:50pm
Thanks Wendy for raising this issue. It underscores the fact that often mediators are called upon to engage in "legal wrangling" as part of the process, especially when discussing what will happen at trial. It makes me wonder whether the group is interested in devoting a portion of a future meeting to an evidence primer?



Latest Activity

American Institute of Mediation posted an event

AIM Institute Advanced Track at the SCMA Annual Fall Conference at The L.A. Hotel Downtown

October 21, 2017 from 8:45am to 5:15pm litigated cases, the delivery of mediation in southern California has become increasingly litigator-driven, with disappearing joint sessions, more aggressive negotiation styles between counsel, and more combative communication between…See More
American Institute of Mediation posted an event

Mediating Commercial and Litigated Cases with Lee Jay Berman at American Institute of Mediation

November 13, 2017 at 8:30am to November 17, 2017 at 2pm
Aug 4
American Institute of Mediation posted an event

Mediating Commercial and Litigated Cases with Lee Jay Berman at American Institute of Mediation

May 16, 2017 to May 20, 2017
This program is a practical training course. While covering theory to give you a framework and the intellectual understanding of negotiation and mediation, this course is about learning. Our focus is on your doing, practicing and experimenting with negotiating and mediating. There is much to teach about mediation and negotiation, but one reason mediators fail is because they understand the theory, but cannot execute it when under the gun. In this course, you will mediate and negotiate your way…See More
Dec 16, 2016
American Institute of Mediation posted an event

Grow Your Mediation Practice Now! with Lee Jay Berman at American Institute of Mediation

January 28, 2017 from 9am to 4pm
We volunteer and we gripe.  We go to “networking” events, and don’t feel comfortable there or don’t know what to do.  Many of those trying to establish a career in mediation come from prior careers in law, mental health or education.  These three careers are among the weakest at marketing and self-promotion.  Our industry suffers unnecessarily because so many are highly skilled at mediating, and yet lack the skills that enable them to secure the opportunity to actually mediate.  In this course,…See More
Nov 7, 2016


Birthdays Tomorrow

© 2017   Created by Kym Adams Director of CEDRS.   Powered by

Badges  |  Report an Issue  |  Terms of Service