ADR CORNER
ADR CORNER
Opening Statements in Mediation … Are They Necessary ?
STEVEN A . MAYANS
“ Drawing on my fine command of language , I said nothing .” ― Mark Twain
“ Opposing counsel and I have agreed to dispense with opening statements and go directly to caucus .” A good idea ? Rarely . Here are four reasons why .
1 . You are forfeiting your last , best chance to persuade the other side just as serious settlement negotiations are about to begin .
Counsel should never assume their counterpart has ever presented the merits of your case to their client candidly , comprehensively , and persuasively . That is your job . It also may be your only chance to speak directly with their decisionmaker without the filter of an attorney . It can be impactful . “ Gosh ,” one dejected party said to me just as a private caucus began , “ we sounded so awful the way she said it .”
2 . Your mediator does not yet know your case .
Many of the cases coming to mediation have been pending for months , even years . “ We all know this case ,” one lawyer knowingly announced as the mediation began . “ No need for opening statements .” “ Scusi ?” I wanted to protest . What about me ? My first exposure to the case was that day . Even where mediation statements are provided ( very helpful and always welcome ), a mediator cannot possibly have the same understanding of the factual disputes and legal issues as counsel . An opening statement can be invaluable to a mediator ’ s effectiveness in assisting with a resolution of the case .
3 . You force the mediator to present each side ’ s case in caucus instead of mediating between them .
“ Oh , they ’ re not claiming that ,” one party confidently told me early in a caucus . ( Actually , having read your mediation summary , I know that you are .) “ But they have no chance of winning on the issue .” ( I explain why you believe you do .) Then , inevitably , comes the question “ whose side are you on anyway ?” This is an unhealthy settlement dynamic that could have been avoided with an effective opening statement .
4 . The mediator is left with only nonusable confidential information when negotiating with the other side .
I have read many cogent , well-written mediation summaries . Instead of sharing the lawyer ’ s persuasive work product with opposing counsel -- which , even better , would likely have been forwarded , without comment , to the opposing client -- it is inexplicably kept confidential . Worse , I am admonished under no circumstances to communicate any portion of its contents with the other side . If no opening statements are given , what information may I appropriately share and what arguments may I safely raise while caucusing with your opponent ( who may have a deeply flawed understanding of your case )?
The bottom line is that a mediation opening statement should be given , except in the rarest of cases . To paraphrase Twain , draw on your fine command of language , and say something !
Steven A . Mayans is a state and federal court mediator , a diplomat with the Florida Academy of Professional Mediators , and a member of the National Roster ( both mediation and arbitration panels ) of the American Arbitration Association .
For additional ADR tips and resources , go to www . palmbeachbar . org / alternativedispute-resolution-committee .
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