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Mediation Opening Statement: Some initial considerations.

March 1, 2011

Your opening statement in mediation is an important component of ultimate mediation success or the lack of it.  Like your opening statement in any trial, it will not win your case, but it may determine whether you can.

Your opening statement sets the tone of your approach, demonstrates your preparedness, outlines those key issues you believe important, and allows you an important opportunity to build credibility with your opposition. 

But, as in all important matters, any successful opening statement requires real thinking, planning and preparation.

To plan your most effective  opening statement, you will need to think about your position and answer some important preliminary questions.

What is the stage of this mediation relative to the litigation and/or pending trial?  “What are  your principal and secondary goals of this mediation?  Who will be actually present at this mediation?  What information central to your position has been previously fully shared with those who are actual decision-makers?   What can you add to your mediation goal(s) by your opening statement?

An opening statement delivered early in your litigation or without trial pending will likely be entirely different from the one that will be your last resolution opportunity immediately prior to trial.   Is your goal to educate your opposition to avoid unnecessary continued costs or is it your last-ditch effort to avoid trial?

For example, an early education mediation will greatly profit from a very simple timeline and/or other selected demonstrative exhibits.  Like a jury,  your opposition will actually welcome this early aid to follow your allegations of the facts with precision, not hyperbole.  Later last-opportunity mediations may find similar exhibits and emonstrative aids equally important.  However, later aids will be generally have become much more pointed to a particular point of strength, rather than an overview. 

Another example may be in the length of your statement.  Early mediations can be effectively used to educate your opposition to fact or law that are central to your position, but perhaps not yet as well understood.  Later mediations will likely suggest much shorter statements, acknowledging that the opposition is equally versed on the basics and now merely needs to focus on limited areas of disagreement.

Some would suggest that particular “points” can be made by the simple tone of your statement alone.  And particularly depending upon the point in time of the litigation.  For example, some advocates often perceive this as an opportunity to “strike fear” into an opponent.

I believe tone is important.  Among other tones, simple confidence is an effective tool.  However, I  strongly believe that success in mediation is better served by setting a tone of resolution during this mediation-settlement conferencing, not conflict.  Paraphrasing an old song, “there will be time enough for (advocacy), when the deal is (not) done”.

For example, I firmly believe opening statements should never be used to bully, threaten or berate your opposition or their counsel, directly or indirectly.  You don’t/won’t like it for your client or yourself.   Don’t you find yourself awfully tired of hearing negative statements or even the constant negative jokes about “trial lawyers”?   Your opposition is often similarly tired of  and sensitive to similar disparaging remarks repeatedly made to them or their companies.

But, honestly, why would you want to begin any honest effort to resolve a dispute with your opposition by antagonizing your opposition?  Unless you are in mediation “only because you must be”, experienced mediators will suggest you will attract and catch far more flies with honey than with salt!

Careful preparation is also critical.  Despite the natural temptation to rest or “wing-it” because no judge or jury is present, it is no time to relax when given your first, and perhaps, last opportunity to speak directly to the party-opponent without the filtering of their counsel.

Among other matters of preparation and precision, to obtain or regain credibility, it is highly important than you never overstate or mis-state the facts or law of your dispute.  Particularly those that are well-known to the opposing parties and their counsel.  It is a sign of either poor preparation or ignorance or worse, both.  Obviously, therefore, the more enlightened your opposition, the more careful you must be in anything you say in your opening.  In short, with early mediations, some error is permissible.  But as you progress toward ultimate trial, errors will cost you dearly in your resolution efforts.

Speaking of credibility, please carefully consider admitting facts or law that you KNOW are correct even if they do not help your position.  Remember, this session is uniquely confidential.  Your opposition will not be expecting admissions from such a fierce advocate.  They will thus be forced to admit your credibility on one matter gives you greater credibility on other disputed issues.  Your uniquely confidential mediation admissions thus can become gold!

In later mediations, assuming resolution is the principal goal, adequate information has been fully and timely exchanged and the persons present have been exposed timely to the information, your opening should be well-organized, but must be much more brief and to-the-point.  As much time as possible should then be alloted to the negotiation process that is the key to any resolution.

However, if, as in, regrettably, the majority of mediations, one or more these assumptions is not true, some modifications have to be considered.

First, rarely is information timely shared adequately.  Accordingly, some emphasis may be necessary on a point or points not adequately or timely brought to the attention of the opposition.  It may be too late for that mediation, but better late than never.

Secondly, rarely are all of the real decision makers present.  Logistics alone may require persons to be standing-in for those who are really making the decisions.  Although frustrating the pure intent of mediation, this practical issue requires that some patience and repetition be used to bring the attending representative up-to-speed.  At the worst, if mediation fails, that is the important person who will be reporting, one way or the other, to the real decision-maker(s).

Third, a secondary goal of mediation may be discovery.  Or strategy.  Although not generally recommended for success at that mediation, sometimes laying out “a line” to see what reaction is obtained, is a legitimate tactic where resolution is thought not possible.  Along with careful listening, testing theories or tactics at mediation can pay later dividends.

There are more considerations to any opening statement for any counsel of any party.  The central point in this initial review is to think, plan and then prepare in advance based upon that plan. 

Just some initial considerations.  More later.

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