Denise Peterson | Peterson ADR
Two parties, both alike in dignity,
In fair mediation, where we lay our scene,
From ancient grudge break to new mutiny,
Where civil claims makes civil hands unclean.
Like the opening monologues of Shakespeare, opening statements in mediation set the tone for the discussions to come and often foreshadow the outcome. Unfortunately, many go from a comedy of errors to outright tragedy due to a lack of planning, foresight, and failure to utilize the correct type of advocacy necessary in mediation. Flawed opening statements result in heated emotions, frustrated parties, and bring mayhem into the mediation.
The following is a roadmap to successful opening statements. Mediation openings should be as thought out and well-planned as opening statements in the trial, but without aggressive, trial-level advocacy. Use this opportunity a bit more like a sales pitch in terms of tone and style is not a bad idea. The goal is to build rapport with the opposing party and acknowledge the potential validity of the claims and defenses presented. The change in tone and approach does not mean advocacy disappears; it is made persuasive instead of argumentative.
To do or not to do an opening? That is the first question. Opening statements should not sling mud and arrows at opposing parties but actively address resolution of the case. The most frequent mistake in mediation openings is to forget to change costume from a zealous advocate to a negotiator. Aggressive openings can alienate opposing parties and increase resistance to settlement and extend the mediation timeline as the mediator spend valuable time pouring oil over troubled waters.
Estimate the amount of time needed for an opening statement. Remember that the other parties may also wish to do an opening, multiply the planned time by the number of parties, then revise as appropriate. When to do the opening should also be contemplated. It can start the day, be done the day before, or even once the mediation has commenced.
Just because one party has decided on an opening does not mean everyone has to do one. Sometimes the best opening is just a simple expression of thanks for everyone’s time and an affirmation of an intent to settle.
A significant factor for success is one of the most overlooked: include the mediator in the planning. Mediators can help refine the presentation and warn of potential pitfalls. It is not uncommon for frustrated parties to throw quotes from an opening back when they feel promises made are not kept, especially any variations on “we are here in good faith.” **
Know your audience. Openings are, in essence, a sales pitch tailored to the target. There is a world of difference between an individual who has suffered a catastrophic personal injury and twenty subcontractors on a construction dispute. Consider the sophistication and experience of the litigants, and as they are the ultimate decision-maker, treat them as such. Use prior settlement discussions as a foundation to build upon during the opening.
Do not attack the opposing party or opposing counsel. Be respectful. As basic as this sounds, if the litigation process has been stressful or high conflict, the temptation to do so will be there. The moment the attack happens, any goodwill or intent to settle will be gone. It may be resurrected, but that moment will not be forgotten during the mediation. If tensions are that high, think about forgoing any opening statements.
Prepare your clients. Make sure they understand what mediation is, what it is not, and the process. If they are uncomfortable with or new to mediation, have a pre-mediation conference with the mediator to discuss what mediation is and its role in the litigation process. The mediator can explain their role and begin to build trust.
Let your clients know they will hear things they do not like and, just like at trial, should not react or respond negatively. Pads of paper to take down notes are an effective way to channel reactions. With online mediations, everyone’s faces are front and center to the camera. Sighing, eye-rolling, or other similar responses will be readily apparent. Ensure your clients are on mute during the presentation.
Perhaps most important, do not let this moment be the first time your client hears their case may fail. Brief clients before mediation on their matter and also on the claims and defenses of opposing parties. Cover what the results would be on their best and worst days in court. Talk about what an average day is as well. Include what would happen if the mediation is unsuccessful in terms of the next steps, especially if significant time or money will need to be invested immediately. Even if not completely happy, they should understand the concept that mediation means some compromises.
Discuss with your client COVID’s impact on the legal system, from delays in trial to the changes in how trials are conducted. COVID is a likely subtopic in an opening statement, especially by the defense, who may want to leverage the time value of money. Contextualizing the time issues for mediation will help clients understand later offers.
The best openings educate not only the opposing party but also the mediator. Expert witnesses can play a role here either in preparation or in presentation. In a tire defect case, the expert witness for the defense gave a master class on how tires work. Presented without reference to the current underlying litigation until the very last few minutes, it was powerful and felt like a neutral evaluation. The discussion started with, “here’s what happens when you have four of the same brand, age, and type of tires on a car.” It then moved on to the impact of age differences, brand differences, if one or more tires are bald, or purchased used. The defense represented a manufacturer of a tire that failed and was the cause of the accident. However, the tire was purchased used and was bald at the time of the accident. The time invested in explaining the mechanical and engineering factors in tire manufacturing and use later supported the defense’s settlement offers.
Mediation openings are also a first run for all parties on how their case may present at trial. Even though discovery has been propounded and gone over with a fine-toothed comb, what is important to the other party in presenting and proving their case is not always clear. How a document is interpreted or the weight given to it is not easy to infer absent context. A mediation opening will create context and may show unknown flaws in the case. In an employment mediation, a single checkbox on an annual review report was the difference between a slam-dunk age discrimination claim and a much harder argument at trial. The checkbox’s import was not understood until it was presented in context with the rest of the claim.
Know the value and weaknesses of the case being presented. Be the right kind of advocate for the case and venue. Ensure the message is tailored to the audience. Test the opening on the mediator for clarity and tone. Opening sessions in mediation are a foundation to present the case while potentially bringing it to resolution, don’t pass up the opportunity.
If we mediators have offended,
Think but this, and all is mended,
That you have caucus’d here
While these proposals did appear.