Skip to content

Mediation Opening Statement: Try A Different Approach

January 31, 2013

An opening statement for the purposes of mediation, in my opinion, should not be even remotely related to the opening statement most attorneys would envision for trial.  Yet, one of the most common, repetitive mistakes made by litigators, in mediation, is to use their trial-type opening statement to begin every mediation.

Some lawyers will say it is “necessary”.  Some will say their clients demand it.  But, it has been repeatedly demonstrated, to me, that if they use their trial-type opening statement for most mediations it often contributes directly to the ultimate failure of their mediation.  Their one-sided advocacy for their client’s position, to their exclusion of the opposition’s position, immediately costs them the perceived traits of  credibility and reasonableness, for them and their clients, so necessary for compromise in mediation.

There are exceptions, of course.  For example, in an “early” mediation where little or no discovery has been accomplished and the parties, mutually, wish to avoid the costs and lost time of litigation, such a complete outline of the case, the issues, the law and reasonable advocacy is likely mandatory for adequately preparing the opposition for the negotiations that must follow.

However, in the majority of mediations, and where trial is imminent (as it should be), the “opening statement” of  your mediation must simply be of an entirely different purpose than it’s intended use for trial.

At trial, the primary purpose of your opening statement is to educate the ultimate fact-finder(s), for their first  factual and legal information upon your dispute, so that they will be able to best follow the likely disjointed and out-of-order evidence you will be presenting over the course of your trial.  A secondary purpose is to begin to sway that person or persons to the strength and justice of “your side” of the dispute so as to ultimately prevail!

At mediation, however, your audience to whom you are “opening” is your opposition!  And they already know (or should know, if you have done your pre-mediation sharing) all of the fact and law in dispute.  And, frankly, they already totally disagree with most of your position. And, thus, it is simply impossible  for you to convince them, at mediation, that only you will prevail.  They, and their counsel, believe they will prevail!

Therefor, in mediation, just what should be your real purpose for your opening?

I submit, your real purpose is to establish your credibility, reasonableness and willingness to work with your opposition to find a voluntary resolution, that, although likely mutual in final outcome terms, is acceptable to your opposition, but for very dissimilar purposes for them.

In other words: actively demonstrate your reasonableness and willingness to accept compromise for a mutually agreeable resolution!

Some litigators find this almost impossible to do.  Their DNA is to fight and convince, never compromise, etc.  They see “reasonableness”, in any setting, as some form of weakness.  Such single-mindedness for litigation or trial may be understandable, but not for the basic goal of successful mediation:  obtaining a reasonable option for trial for comparison and ultimate choice by the client.

Consider the difference in setting.  In trial, all alternatives of compromise have failed, both opposing sides truly believe they are totally right, the opposition is totally wrong and each believe they will prevail once “their side” has been accepted by the fact-finder.   Both sides’ opening statement are therefore, totally, uncompromising.

But, obviously, one side will be found wrong.  Perhaps, both!  And, soon they will find out which was correct, if either!

In mediation, however, both sides truly WANT resolution by compromise, despite the “tough” talk.  Neither side really wants to have others make their decision for them.  But in mediation, the issue is: WHERE to resolve the dispute and will the opposition even permit it?  And, with rare exception, the “where” refers only to dollars to be paid!

In short, if the parties can simply find the point where the plaintiff can receive enough money to allow resolution, regardless of the source, and the defendant can and will pay that amount, regardless of why, resolution will always occur!

I submit, therefore, that each mediation opening statement must convince the opposition that with their simple investment of their time and effort a resolution can be found.  Your task, then, is to change their pre-conceived image of your one-sidedness.

Accordingly, I suggest beginning your “opening” by first simply telling your opposition that resolution, that day, is your primary goal!  Beginning, by simply stating that your efforts, that day, is not to “try” the case but to find a common path to resolution, not trial, is invaluable.

And, then, follow through by avoiding the usual trial-theme of “winning and losing”, but instead, show genuine acceptance of your weaknesses in demonstrating your mediation position of compromise.  And, thus, as trial is always the alternative to voluntary resolution, any statement about any future trial outcome also becomes totally unnecessary!

In the confidential setting unique to mediation, you next can and should make clear and specific concessions to the strengths of your opposition that prove your reasonableness!

For example, if “liability” is the heart of your oppositions’ defense, consider opening by conceding that a judge or jury “may” very well accept their version or your version, or even some of each, and that therefore both sides must factor in any compromise an adverse outcome, in whole or in part.  And, then rather waste time trying to convince your opposition of your position  over theirs, simply move immediately to the strengths of YOUR case regarding damages. 

However, if an issue of damage is the strength of your oppositions’ defense, again, try conceding your obvious weaknesses and your willingness to consider that a jury might not agree, fully, with you.  Then, move on to other damage claims less contested!  And, then “observe” the obvious, that likely you will prevail on the good liability in SOME amount, and thus suggest that all could save by voluntary resolution of compromised damages .

Reasonableness at mediation can be further “proven” beyond your mere words by your opening demand or your opening offer in your opening statement in mediation.  Both sides know of the reasonable range of any future trial.  Opening at a bargain with that future likely outcome truly in mind is critical to your credibility.

It has been my observation that the opinions of future likely outcomes at trial by competent and prepared lawyers for both sides will almost always overlap.  There will be some bias, naturally, on likelihood of outcome or even damage ranges.  But, overwhelmingly, there usually is a common point, based upon those overlapping opinions, upon which both sides will have to concede that a voluntary resolution makes better “business” sense than trial.  The key is to get the parties, from the beginning to want to try to find that common point.

And, even better, if you already have a pre-mediation demand/offer pending, nothing speaks reasonableness more than a uni-lateral, unsolicited reduction/increase in that former position to “get started quickly today”.  It can become your “instant credibility”.

This is also where fully understanding the position and reasoning of your opposition (and even relating to it, if not agreeing) is so critical.

Although your first duty is to “know” the most likely future outcome at trial should mediation fail, your very next duty is to “know” just what your opposition CAN do and WHY!  A defendant must have some reasonable idea of just what minimum recovery a plaintiff must have to be ABLE to settle rather being forced to trial.

Likewise, any plaintiff must have some reasonable idea of just what maximum CAN come from a defendant before they would choose to “take their chances” at trial .

Anything sought in mediation beyond what your opposition “can” do will be a goal that is a waste of everyone’s time.  (And, sadly a lot of time is wasted in just these areas in early negotiations of almost every dispute.)

I submit that if your “opening statement” focuses, not upon your contemplation of total future victory for your client at trial, but rather upon your reasonableness, your understanding of your opponent’s position, your willingness to compromise and your demonstrated respect for your opposition, your odds of increased success in that mediation will skyrocket!

Just try this different approach in your next mediation.  Trust me, you have nothing to lose and so very much to gain!  And, so does your Mediator!

Dan, from Tampa, Florida

What Do You Think? Your Insight Can Be Helpful To Others.

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: