IN THE PROFESSION
mediator ’ s use ( confidential ) or it can be given to the mediator and to the other party ( non-confidential ).
The advantage of a non-confidential mediation statement is that it gives you the opportunity to communicate directly with the principles on the other side and propose alternative solutions . In turn , this gives them time to consider the proposal in advance , discuss it with others and get answers to any questions they may have before the mediation session .
It is also possible to draft a mediation statement in two parts – a non-confidential mediation statement to be shared with the other side and a confidential appendix to be read only by the mediator which candidly discusses strengths and weaknesses and other factors that could impact the negotiations .
Opening Statements / Presentations – An Opportunity to Educate
On the question of whether there will be opening statements , opinions differ about their value . Some lawyers believe that having opening statements at the mediation will be unproductive , may polarize positions , and will only give opposing counsel an opportunity to posture . Requesting the mediator set and enforce agreed upon ground rules will minimize those risks . At a minimum , each party needs to agree that :
1 ) each party will respectfully listen to the other party without interruption ; 2 ) opening statements will be nonargumentative ; and 3 ) subject to agreed-upon time limits .
Making an opening statement is an opportunity to educate , persuade , open a dialogue , create trust , and encourage compromise . It may be your only opportunity to speak directly with the decision makers before the parties go to their separate caucus rooms . Instead of leaving it to the mediator to tell the other side what you need to settle - tell them yourself . A non-argumentative presentation of the facts , law and possible resolutions that is coupled with logic and reason can convey a genuine interest in resolving the case and open a dialogue about what the clients need to settle the case . Speaking with conviction about the merits of your case , highlighting any facts or law that the parties agree about , recognizing the other side has needs , and acknowledging areas of uncertainty in your case will give you credibility with the mediator , opposing counsel , and most importantly , the people who have authority to settle the case .
Joyce Klemmer is a mediator and arbitrator with JAMS . Formerly in private practice , she focused on complex IP and commercial litigation .
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