Opening statements are given in joint opening sessions. This is where mediators meet with everybody in the same room and explain the purpose of the mediation and the ground rules for the day. This post is not discussing whether or not to have a joint opening session-that is the subject of a separate post.
Most mediators make their own opening statement and then ask the parties if they would like to say anything. Most do. What do you say? How do you say it? Who says it? Who speaks first?
Who speaks first?
Whoever is making the claim usually goes first whether or not legal proceedings have actually started. But there is no iron rule. Mediation is after all a flexible process. In any case, does it matter who goes first?
If you go first you can only anticipate what you think the other side is going to say. You don’t actually know. If you go second you know what the other side has said. In practice, if not in theory, there is no particular advantage to having the first word or the last word at mediation. Mediations are not the same as court hearings. Everyone gets their chance to say whatever they want at mediations.
Who makes the opening statement?
Usually, the lawyers make the statement. If barristers have been instructed they do it. Occasionally it’s the solicitors.
Some mediators insist that they want to hear from the clients rather than their lawyers. Some clients are very happy to give their side of the story. Others are petrified. If your client doesn’t want to make an opening statement in public they don’t have to. To avoid embarrassment or tension tell the mediator in advance what your intentions are.
Making an open statement which sets the mood for settlement talks, assesses the issues for discussion, summarises legal positions and suggests the way forward is one thing. Making an impact statement, explaining how the dispute has affected someone’s life or business is quite another. An impact statement made by a client can be very powerful provided that it’s structured, short and sincere.
Why make one?
Your opening statement is one of the best opportunities that you have at a mediation to make an impact on the process. It’s even better than what you can do with your written position paper or mediation statement. You can set the mood and create the agenda. You can start relationship building with the other side, particularly with the other side’s decision-maker. That after all is the person who is going to decide whether or not to make a settlement that your client can live with.
So as with your position paper be very clear what your message is. If you and your client are not clear about what you want to get across how will they be clear about what you are saying to them? Work it out in advance. Practise it. A few scribbled notes jotted down on the morning of the mediation are not enough.
You want the other side to listen and absorb what you say. Resist the temptation to attack them, their lawyers or their case. If you do that they will close up. Attack is not the best form of defence at mediations. Explanation is. Much better to engage in an overall assessment of the situation from both sides’ points of view.
Acknowledge the points that they have made in their position paper and if you’re going second, acknowledge what their lawyers said in their opening statement. After all, if one side had a 100% monopoly of all the good points of law and evidence you wouldn’t be at mediation. Summary judgment would already have been entered.
Outline the benefits for both sides of a negotiated outcome rather than a litigated one.
Remember at mediations you are looking for the common ground: not the battleground.
What do you say?
If you have exchanged position papers there’s no need to repeat what’s in your position paper. Instead
- Identify the issues that you think that with the help of the mediator the parties still need to sort out.
- Deal with any new points made in the other side’s position paper or opening statement.
- Highlight the important issues for your side. Say what you think the important ones for them are as well. If you are wrong about them they will tell you.
- Be realistic. Say that you are not expecting anyone to publicly change their minds. What you’re expecting both sides to do with help, of the mediator, is to find a way of accommodating their different perspectives.
- In other words to find a solution that both sides can live with that represents a better alternative to what the judge is likely to impose on you all if the case goes to trial, no matter which side wins.
- If they have said that there is something about your position or case that they do not understand offer to explain it. Depending on what it is, this might be done better in private sessions between lawyer and lawyer or expert to expert. Invite the mediator’s help in resolving unexplained issues.
- Mention any time constraints that any members of your team have.
- Ask them what they would do if they were in your shoes.
How do you say it.
Words matter. Be careful about your vocabulary and tone of voice. Jury speeches and forensic rhetoric are out. Forget finger jabbing and table banging. Remember that smiling, nodding your head in acknowledgment, nudging and suggesting not asserting are the tools of the deal-maker’s trade.
Avoid being pompous and legalistic. But be careful of being too informal and casual. Mediation is a serious business. A slightly formal conversational tone works well. Remember people do business with people they know, like and trust. This is what you have to do with your opening statement. Let them see that you are competent, realistic and reasonable.
Remember at all times that you are there to try and achieve a settlement. Capitulation is not the same as settlement. There’s no point trying to pound their case to rubble with heavy legal bombardments.
For further guidance on preparing and delivering opening statements see sections 15.14- 10.16 in my book Mediation Advocacy: Representing Clients in Mediation 2018 2nd edition Bloomsbury