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Mediation Tip: A Radical Idea? Consider Waiving Your Opening Statement

September 30, 2011

An opening statement in mediation to any attorney is as “standard” as it gets.  There are articles in abundance suggesting  how to prepare for and present such a basic staple of  our popularly accepted formal mediation process.

But, for a change, I would like to ask you to consider the question, is an opening statement really necessary?

Perhaps a better question, not so radical, would be, is one always necessary?

Increasingly in my pre-mediation consultations with opposing counsel (and, of course, under proper circumstances),  I ask an attorney to consider totally omitting their “usual” opening statement for their mediation.  Sometimes one side.  Sometimes both.  Or, at the very least, I may suggest they give consideration to very highly modified openings from one they might “usually” give.

I consider this a part of my mediator’s role:  preparing all of the parties to allow them their best opportunity to obtain success in their mediation goals.  And, as a total neutral to the process and  confidentially privy to knowledge of areas likely to be potentially adverse to any mediation success, who better to make such suggestions for their consideration?

If you really consider the idealized setting of mediation, i.e.,  the joint pursuit of a friendly mutual resolution based upon equally known facts and law in purposeful avoidance of trial, isn’t it just possible that some opening statements are simply unnecessary?  Or, at the very least, shouldn’t they be carefully tailored solely to specific need?  Is it even more possible that the wrong opening statement can be far worse than none at all?

I have already suggested the careful and judicious use of opening statements, tailored to the circumstances.   See,  “Mediation Opening Statement: Some Initial Considerations,  March 1, 2011.  But, I have also reported  the peril that can occur from their use in some emotional settings.   See, ” Mediation Tip:  Body Language Control May Be Helpful“, September 14, 2011.   (And, I have now in draft, some additional thoughts about related Anger Management to share later. )

Is it just possible that one of your primary preparation considerations must be to decide whether you use an opening statement at mediation at all?

Advocates simply love the opening statement, particularly at trial where openings are often permitted beyond any actual evidence.  They are also loved because of the showmanship and pure verbal persuasion opportunity perceived to be allowed any advocate of any position.  Many advocates also consider opening statement in mediation as the perfect opportunity to impress their client with something they feel their clients may need to give them the courage to press on to trial.

But advocates must first learn that an opening statement for trial is a totally different animal than one used for effective mediation.

At trial, the trier of fact is a neutral body just waiting, and wanting, to be told a story they have never heard.  In mediation, the trier of fact is the opposition who already believe they know the story!  Thus, because the audience is totally different,  there is a huge difference in an opening statement in mediation than that for trial.

Imagine yourself as one of your opposition with your mind already made up because of all of the pre-mediation investigation and discovery you or your representatives have conducted and uni-laterally evaluated.  Imagine then that the “story” told to you on opening statement by your opposition is then totally contrary to your strongly held beliefs.   Regardless of whether later proven true or not, how is this “false” story going to make you feel initially?  Won’t it be a natural feeling to immediately feel resentment toward the “story-teller telling such falsehoods”?

And, is resentment against you or your client a good beginning emotion for someone with whom you are seeking to try to find resolution?

Clearly there will be times when the circumstances require some form of an opening statement.  Hopefully, not to completely educate your opposition, but perhaps to make key points.  And certainly the earlier your mediation, the more key points you may have to make with the opposition decision-makers.  But, shouldn’t it also be your goal to conduct the primary thrust of your education before mediation and thus, avoid the necessity of a lengthy opening statement?.

I know this sounds like I am backing into my known rhetoric about advance preparation and education of your opposition as a key component of successful mediation.  And, perhaps I am.  But, the more frequently I observe the pro’s and con’s of opening statements and weigh the benefits and detriments, the more I have begun to question the opening statement in general and certainly the proper tailoring of opening statements, including considering their total waiver.

Advocates will find this a hard suggestion to accept.  Some clients will also.  But, both may be losing sight of the pure fact that mediation is not litigation.  Litigation is a time to try to prove your point to the exclusion of your opposition’s point.  However, mediation is a time for discussion, understanding the opposition’s position, and working mutually with the opposition to find a resolution that meets everyone’s needs, not just those of one party over the other.

Recently, pursuant to one of my pre-mediation conference suggestions, both sides to a well-discovered, well-prepared, and well-pre-mediation information exchanged mediation, agreed to waive their opening statements and move immediately to negotiation.  Even though a complex matter of significant monies, the valuable extra negotiation time gained, super-imposed upon less irritable opponents, using only their mediator to pass the hard messages (softened by tact), accomplished a resolution that likely may not have been gained if opening statements were not very, very judiciously tempered.

In another, one of the two sides opted for no opening, resulting immediately in a greatly modified opening by the other, with a similar successful result.  A co-incidence?  Maybe.  But maybe, just maybe, some really good lawyers got even a little smarter on when and how to use, or not use, their opening statement to their advantage, not their detriment.

Waiving opening statement is not for everyone or every case.  And, undoubtedly opening statements will be used much more than waived.  But, there will be many instances in which, particularly following suggestions of your mediator, that you may want to consider a well-reasoned waiver of your opening statement in maximizing your mediation efforts.

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