We are now one year into mediating online and entering the third wave of the Covid-19. After over a year of lock-downs and restrictions, many of us have become very comfortable with mediating online. Given the benefits of mediating online, I believe that this practice will be continued for at least the next several months, with the potential to become a permanent option for a significant number of cases. With that in mind, there is value in taking the time to reflect on the importance and best practices of opening statements when mediating online.
Many lawyers often suggest a desire to do away with opening statements in the mediation process, believing they are nothing more than formalities that unnecessarily aggravate and heighten tensions. This thinking suggests that whatever one side hears from the other is going to offend, insult and agitate; so why start a mediation off on the wrong foot?
Don’t get me wrong, in some cases or areas of law, openings are not the norm, nor are they productive, in which case it does make sense to forgo openings. And, in cases where negotiations have been taking place leading right up to the mediation, it also makes sense to continue those discussions during the mediation without openings that may only remind everyone of where they started, and of their differing viewpoints.
However, in many cases, openings can be the way to start getting your message across and to engage the other side towards settlement.
Why Openings may be More Helpful when Mediating Online
In many cases, when approached strategically and thoughtfully, openings can help set the stage for a helpful exchange of views and lay the foundation for a productive mediation, rather than being stubborn statements of defiance and rigidness. When mediating online there is a need to build trust during the process, compensate for a lack of contextual cues, and work to build attachment and investment in the process. A well-thought-out and delivered opening can make a big difference to the success of the mediation.
You want to be able to deliver your message in a way that gets through to the other side, makes them consider what you’re saying, and allows them to take it into account during negotiations.
It’s important to remember that, when speaking online, the face of the speaker on the computer screen may be the only thing people are focused on. Use that to your advantage by communicating in a way that draws them in and keeps them engaged. Be aware of the attention span of your audience; if the listener is overwhelmed, confused, distracted, or bored, they may tune you out completely. A concise opening highlighting the strengths of your case and meeting the challenges directly is key to getting your message across.
As well, do what you can to connect with the opposing party on a personal level to establish a rapport, which will be very beneficial throughout the mediation process. This can be as simple as initiating or engaging in some small talk prior to getting started.
Lastly, keep in mind when mediating virtually to make sure your background is not a distraction, that the lighting is effective, and that you are not easily distracted, especially when working from a home office. When counsel are making opening statements online, it is important to keep in mind the objectives of building rapport, finding connection, trust in the process, engagement, and getting one’s message across.
Some Specific Strategies
In my experience, either an apology or an acknowledgment by either side in their opening can go a long way to laying the groundwork for settlement. It can often help move the parties beyond long-standing hurt feelings or grudges. A gesture like this can not only help the parties begin to feel better about their situation but can also be the first step to opening a constructive dialogue and moving toward a resolution.
Expressing the understanding that both sides need to work together and compromise to reach a settlementis another effective tool. This opening helps to establish an intention of proceeding with honesty, sincerity, and a sense of fairness, which can go a long way towards establishing the trust and rapport necessary to arrive at a settlement.
Having clients speak in the opening, wherever possible, can be powerful and instructive for all sides. It gives them an opportunity to have their voice heard and to have people listen to their story from their unique point of view. Often this step is necessary for them to move on towards reaching a settlement during the mediation. The opposing side will hopefully obtain a sense of where the other person is coming from, what they have been thinking, and what they are looking to get out of the mediation. It also gives both counsel and the mediator an opportunity to see how the party would come across during a hearing or trial.
Having claims professionals speak during the opening may be especially productive. They can both acknowledge the situation the plaintiff is in and outline what the plaintiff needs to show as evidence and what they need to do to get approval for a specific monetary amount for settlement. This is often eye-opening information to the claimant and helps them to manage their expectations.
Finally, opening statements should avoid using aggressive language that can be interpreted as attacks on the personal character of opposing parties or casting judgments. It is even more important that this is kept in mind when delivering an opening statement in an online setting, where everything one says is magnified.
Make the Opening Count
Please consider a respectful, thoughtful and engaging opening statement to lay the foundation and establish rapport to ensure a productive mediation.
ABOUT THE AUTHOR
Marshall Schnapp, BA, JD, LLM (ADR) has been resolving disputes for over 10 years as a mediator and has extensive experience in adjudication as well. Clients consistently recommend Marshall for his upbeat, tenacious attitude, and the skills he has honed helping resolve thousands of matters.
Get in touch with Marshall by email at marshall@schnappmediation.com or by telephone (647) 250-7216 today to set up a consultation, and see why he is the right mediator for your next file. For booking availability, please visit https://schnappmediation.com/calendar-2/ or contact Lacey Day at admin@schnappmediation.com or (647) 250-7216.
