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Mediation Openng Statement: Organize and Shorten It For Maximum Effect

May 18, 2012

An old writing instructor once told me, “it takes a long time to write short.” 

And, in any writing, shorter is almost always better than longer.   Have you ever noticed that if the first few words or so of any written letter or article don’t catch your attention, you are likely to simply quit reading it?  It is the same in speaking.

Like Lincoln’s Gettysburg Address, a few well-chosen words will live far longer after they are spoken than a large number of words equally well intended but simply too long!

This same concept is true with your mediation opening statement.  If you simply must give one, (i. e., “A Radical Idea?  Consider Waiving Your Opening statement”,  September 30, 2011) at least invest the time and effort to make it your most effective one.

The purpose of opening statement is simply to focus upon those few matters necessary to your negotiation strategy for that mediation.    You are neither trying your case that day, nor attempting to obtain total acceptance by your opposition.  You are simply trying to establish points upon which a compromise of opposing positions can be found.

Begin planning your opening by making a broad outline of every point you wish to make with your opening in this mediation.  For an overview of what I mean by “this” mediation, see, “Mediation Opening statement:  Some Initial Considerations“, March 1, 2011.    

Then, make sure you also  include  honest factual and legal concessions and even admissions potentially against your interest (remember the advantages of confidentiality to gain credibility in the mediation setting!).

Try to remove highly disputed factual points for those clearly proven   But, for certain,  totally avoid law disputes that easily could have been remedied with a timely hearing.  Debate over legal issues often, alone, doom mediation.

After listing each of these points, look for duplications.  Then eliminate them to further narrow your focus to only those very few  points that need being made at this particular mediation.

After organization of your now very limited points for your opening, select no more than one (1) easily handled exhibit, admissible into evidence,  that clearly demonstrates each of your limited points

Then, again, reduce those total exhibits chosen to only the very most demonstrable and irrefutable.  Again, to strengthen your position and leave little for your opposition to counter.

Next, organize your highly limited points into a cogent, easy to follow pattern

Such a pattern should be so obvious as to allow your opposition to practically recite, and in the same order,  your points once they begin their own deliberations.  And, this same easy pattern will also allow your mediator to follow your points, either in review of your position or in a slightly confrontational analysis with your opposition.

Feel free to carefully strategize your opening

If liability is your strength, over-emphasize your opponents obvious responsibility early and often.  However, if the pure exposure of your opponent to a potential of a large damage award is your best position, begin your opening with this strength, virtually ignoring your weaknesses of your own client’s possible partial or even full responsibility!

In short, this is an opening, not a debate!  Because you are stating “obvious” points YOU have chosen, you need not “defeat” your opposition on every point, only impress them with your logic of the points YOU choose.  (If they read this blog, surely they will cover any point you “choose” to omit in their own limited opening!)

However always begin ANY mediation opening with an (honestly) affable (nice and friendly) statement of your purpose for mediation:  your willingness to seek a mutually satisfactory resolution to avoid, mutually, the emotional and financial cost, the lost time and the inevitable uncertainty of any trial.  Remember your setting: you are seeking cooperation and understanding from your opposition, not their capitulation to your “demands”.

Another point to consider, and early,  is the wise and early use of your  invaluable “apology”.  Always remember that one may “feel the other’s pain”, even if they believe they have done nothing wrong (including even bringing the legal action!).

Next, plan your opening point to be your strongest point.  And, your last point of your opening, your second-strongest.  Each of the other, limited, points should fall logically in your chosen “pattern” between the two.

And, always consider the use of a simple calendar or time line.  At the least, imagine that someone was telling you a story.  Could you keep oriented as to the sequence and dates of the events you are trying to convey?  If not, a calendar is essential.

And, it saves words!

Now, set this all aside for at least a day or two

Then,  a day or more later, make one final review of your former work-product, removing every excessive word or point,  to  reach your final mediation opening statement.

(One constant:  Always……. (Plaintiff or Defendant) have and use your most effective mediation tool, your future likely trial verdict form in summation of your points.   Should you hold a weaker position on one issue or the other, it is “fair game” to isolate your summation to that part of your proposed verdict, ignoring your weaknesses.  However, this is the one exhibit you must have.  See, “Mediation Opening Statement:  A Required Consideration…Your Likely Verdict Form”  August 9. 2011.)

With this organization, you now need only be short.  Or, at least, if not short, very, very efficient with your time.

It is difficult to generalize about the length of your opening in terms of time.  However, one simple test might be helpful to determine whether you are ready. 

Can you give your opening with only minimal notes, using only your chosen exhibits and your memory of your organization? 

 If not, your opening may be too long.  If it is not interesting and organized enough for you to remember your own presentation, likely it is not going to be attractive to your opposition who frankly comes with a different view of your dispute.

Many will never take the time that this type of mediation preparation requires.  And, some will find mediation success without the effort.  But those who take the time for the most effective opening statement will likewise be that much further ahead in the other preparation required for success. 

These are the ones that will reap the largest rewards from mediation.

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