Often, counsel believes that openings at mediation are an unnecessary “waste of time” that delay getting down to negotiating, or that they do more harm than good. I don’t believe that this is correct. Although there may be cases or areas of law where opening remarks are not helpful, in many cases a well-crafted and thoughtful opening can be key to a successful mediation for a number of reasons.
I have heard a lot of opening statements at mediation and the most impactful openings are thoughtful and concise, and serve to address both the strengths and weaknesses of a party’s case. When opening statements are done right, they can set the stage for a helpful and mutually beneficial exchange of information and points of view, and lay the foundation for a productive mediation. That being said, there are a number of factors to consider when creating and delivering opening statements that presenters should be aware of.
Well Thought Out & Organized
The value of an organized opening statement cannot be understated. Be direct and to the point, and focus on the most vital pieces of information to make sure that your argument is heard and understood. An argument that is disjointed or doesn’t follow a clear line of thought can be difficult for the parties to follow, leading to confusion, and can distract from the message completely. Be sure to address both the strengths and weaknesses of your case and meet head on the issues bring brought up by the opposing parties. Also, note issues that are not clear and ask for clarification to obtain the neceesary information. By engaging in an open dialogue, trust and rapport can be built which can help parties reach a resolution.
An opening statement should also be consistent with your objectives at mediation, especially when it comes to tone. A positive, direct and constructive tone will make it more likely the other parties will listen and consider what you are saying. Using a tone that is highly adversarial or aloof, or a tone that suggests that there is no room for concessions or compromise may be off-putting enough that the other parties “shut down”, or just stop listening to your remarks. It’s important to speak in a way that will ensure you will be heard.
Choose your words wisely
Counsel should also be mindful of not only their tone but also of the language they use. Speaking in a way that is too formal could put off or confuse parties that don’t have a legal or academic background. Using aggressive or confrontational language could be interpreted as an attack or an unwillingness to negotiate. Even if unintended, this can come across as hostile and may have a negative impact on the mediation process.
Consider whether an apology would be meaningful and beneficial. A sincere and empathetic apology, whether from counsel or from the client, can help parties feel acknowledged and start to move past long-standing grudges, hurt feelings, or other emotional impasses. However, any apology needs to be sincere and thoughtful; if the receiving party feels it is insincere or perfunctory it may cause more harm than good, and not help build trust and rapport.
Also, consider using technology to emphasize and clarify your key points. Sharing your screen to allow the parties to read a section of an important document, or to view a video or pictures, can help the parties clearly understand your argument, especially when a scenario may be too complicated or lengthy to clearly describe. Using visual and audio aids can be beneficial in other ways as well, including keeping and maintaining the parties’ attention, and providing alternative methods of communicating your ideas for those requiring accommodations for disabilities or differences in comprehension styles.
Read The Room
While presenting your opening, be aware of your audience. How are the other parties reacting to what you are saying? Body language, facial cues, and actions (or lack thereof) can indicate whether the parties are actually listening to what you’re saying, or if they’ve become distracted or lost interest. Being aware of these cues can indicate that an adjustment is needed to get back on track, or that some or all of the parties could use a short break.
Consider if your Client Should Speak
When crafting an opening it is important to decide if there is value in having the client speak. This can be powerful and instructive for all sides if your client will be able to communicate effectively. Opposing sides may get an overdue 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 an opportunity to see how the party would come across during a hearing or trial.
Though some may feel that opening statements are antiquated or unnecessary, I have seen first-hand how openings that are carefully planned and delivered mindfully can have a very positive impact on mediations by setting the foundation for a productive session. Putting a little extra time into preparation, and being conscious of the delivery, can lead to a productive and successful outcome at mediation. Don’t underestimate the opportunity a well-thought-out opening brings.
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 firstname.lastname@example.org 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/booking/ or contact Lacey Day at email@example.com or (647) 250-7216.