Mediation Tips on Opening Statements

 By Burke Johnson, Esq. & John Hadden, Esq.

Mediations often begin with the parties beginning the session together.  During this joint session, mediators often provide the parties with an opportunity to make an “opening statement.”   Parties sometimes make the mistake of treating an opening statement in mediation identically to an opening statement that would be made to a jury during trial.  Below are three tips to avoid such a misstep right out of the gate.

Confidence Without Arrogance 
          In a mediation opening statement, it is important to convey the strengths of your case, while at the same time making clear that you are willing to listen to the other side and negotiate in good faith.  A good opening statement should include both elements.  This is truly an art and is very client and case sensitive.

Calculate the Impact of Information

          How elaborate or detailed should the case presentation be during the opening statement?  You are not likely to convince the opposition that they will lose at trial or to impress (scare) the other side with mere puffery.  The ultimate goal in mediation is to obtain the best result. This requires good preparation.

          Putting up a strong case during an opening statement and/or providing compelling information during negotiations demonstrates a willingness to put the time and money into preparing a case for trial.  It also assists the opposition with valuing its case more accurately.  Withholding compelling information at mediation can result in a lost opportunity for strong negotiation.  As such, calculate the impact of sharing information in an opening statement.

Direct Communication

          In most mediations, attorneys exclusively deliver the opening statement and the actual party remains silent.  Whether a party speaks often involves a multi-factored assessment that turns on the client’s personality, likelihood to misspeak, and demeanor.  Additionally, the cathartic effect of speaking and feeling they have “had their day in court” can be a critical factor for whether a party speaks in an opening statement. On the other hand, what the client may say and how it is said may result in a setback of negotiations.  Particularly in disputes that are emotional, such as personal injury cases, statements that inflame or alienate the other party are counter-productive.

          Balancing these factors is difficult.  However, technology may offer a solution.  Many attorneys fail to consider using video clips in their opening statements at mediation.  In disputes that are less “corporate” in nature, incorporating a well rehearsed video clip of the client (and perhaps a spouse, too) into an opening statement can be compelling.  Pre-recorded videos can mitigate the risk of a client performing poorly or offending the other side.  It also can remind the other side of the personal nature of the case (and how a jury may react).  It is a great way to make the most out of an openingstatement at mediation that sets a strong tone for getting negotiations going.


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