For some time, quite a few mediators and advocates alike have dispensed with opening statements, foregoing the joint session when all parties and their counsel meet together at the beginning of mediation. The most often cited rationale for this choice is that the parties are familiar with the arguments on the other side and they just want to get on with the negotiation because, hey, time is money. And no one really wants to sit for any period of time listening to the mediator bloviate about her qualifications and war stories – that’s what websites are for and, one would assume, the lawyers have checked their mediator out before signing on. So, to the extent that mediation openings have been more about the mediator than the parties, the trend away from that part of the process is understandable.
With that out of the way, though, I’d like to make the case for bringing the opening session back. In waiving that opportunity to directly address the opposing party, I’m convinced attorneys are often missing out on their best chance at persuading their opponents to compromise.
Obviously, in some situations, the joint opening session may be inappropriate or unnecessary. It is not advisable to require a party who is fearful of or aggressively angry at another party to sit in the same room with that party. There are also cases in which the opening session would serve no useful purpose, such as a second mediation that is meant to pick up where the first one left off. In most cases, however, the litigants and their attorneys can and should expect some real value in the opportunity to present some key statements to the other side, face to face.
Here are a few suggestions for making a meaningful impact at mediation by presenting an opening statement:
- Go for Perfect Pitch
Sometimes the only statement you’ll need to make is a genuine expression of good faith participation. Explain the status of the litigation to the mediator and advise her of any settlement discussions already under way. Show the other side that you take the case seriously and offer to answer any questions your mediator might have.
In most cases, you’ll want to touch on two or three of your strongest positions (which may include the other side’s most vulnerable issue) in order to lay the groundwork for your initial offer. I would caution against discussing matters that may be embarrassing to the opposing party in the joint session. If you expect this information to be admitted into evidence, leave it for the mediator to communicate at the appropriate time.
Under certain circumstances, you might find a thorough presentation of your theory of the case to be a more effective way to start. When previous informal discussions have fallen flat, a full-on preview of your strongest arguments could be called for. One of the most effective opening statements I’ve seen was presented by a Plaintiff’s attorney who used a PowerPoint outline to demonstrate exactly what he intended to show the jury. It was easy to imagine his nutshell version of the case as a convincing closing argument at trial and it turned out to be the catalyst for a successful resolution. It’s a difficult decision to expose your trial strategy at mediation, but it can definitely pay off under the right circumstances.
- Focus on Conciliation
Whether you’re there voluntarily or under order of the Court, you and your client are obliged to participate in good faith. Start with that. You are there with the intention of negotiating toward resolution of the case and you look forward to working with an open mind toward that end. Be respectful and courteous. Everyone in the room knows your position is adversarial to the other side’s, so present it matter-of-factly. Avoid aggressive language or argument – you can save that for individual caucus and let the mediator deliver it in the way he thinks might be most effective.
- It’s Best Not to Wing It
Can you imagine going to trial without having a carefully crafted opening statement? Zero in on the most salient points you need to make, then organize your thoughts in advance so you won’t get bogged down and end up obscuring the issues that are pivotal to your evaluation.
- Look Directly at the Decision-Maker
This is good advice for at least two key reasons. You want to connect with the person who stands between your client and resolution. The opening session gives you a chance to observe the decision-maker’s reaction to what you say and how you say it.
The tendency for many attorneys is to direct opening remarks to the mediator. The primary function of the opening statement in the context of mediation is to help the other side appreciate the strength of your position and your ability to sell it to a jury if the case doesn’t settle. You don’t need to persuade the mediator of anything. The party who will be making the ultimate decision whether to accept or reject your client’s proposal is the person you need to convince. Make eye contact. Don’t worry about the mediator – she’s paying close attention and taking notes.
- Mention Things Both Sides Can Agree On
They might be little things, but it can be helpful to remind your adversaries that you and your client share some common interests or insights with them.
- Own Up To Your Weaknesses
One of a trial lawyer’s stealth weapons is the ability to rob his opponent of the theatrical “ah-ha” moment of revealing to the jury something that makes your client or your case look bad. We all learned this in our law school trial advocacy classes: introduce the thing that reflects negatively on your case and explain it away before the other side makes a theatrical presentation of it. The same strategy can be equally effective in mediation. Your opponent’s evaluation of the case may hinge on how well she can maximize the negative impact of the thing you’re most worried about. Think about how you can present it in the best light and persuade her from the beginning that the mediation should not be defined by that fact alone. If it’s already on the table, it’s less likely to be a snag for negotiations later in the process.
- Apologize When Appropriate
On occasion, the Plaintiff’s primary injury may be wounded feelings or pride. If this is the case, a simple statement in the opening session that your client is sorry or feels bad about what happened may be the icebreaker that launches a smooth negotiation and quick settlement. Even a general expression of regret for inconvenience or frustration is likely to be well received. There is no downside to a sincere expression of compassion or sympathy.
- Pay Attention
Notice the opposing party’s body language. Is he angry, emotional, passive, disengaged? Are you able to make eye contact? The party’s demeanor may give you a hint how motivated (or not) he is to settle the case. Watch for any reaction to specific words or themes – you might pick up on some visual cues for topics that will inform negotiation.
Before your next mediation, give some consideration to your opening statement as a valuable tool for negotiation. Preparing an opening statement is a modest investment in time that provides a valuable overture to the caucuses that follow. Often, the few moments spent together in a joint opening session can reduce the overall length of the process, because the mediator has the ability to hear each side’s rebuttal on the issues without several back-and-forth fact gathering caucuses. If you regularly waive the opening session, I’d encourage you to rethink your rationale. You’re likely to find it’s worth more than you thought.
Aust ADR, LLC 