Originally published in September 2022. Last updated October 2023.
Often, counsel believes that openings at mediation are a “waste of time” that unnecessarily delay getting down to negotiating. Some lawyers believe they usually do more harm than good. I don’t agree. Although there may be certain cases or areas of law where opening statements are not helpful, a well-crafted and thoughtful opening can often be a key component in a successful mediation.
That being said, presenters should be aware of and consider several factors to consider when creating and delivering opening statements .
Well Thought Out & Organized
The value of an organized opening statement cannot be understated. Be direct, get 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. This type of opening can lead to confusion and distract from the intended message completely.
Be sure to speak to both the strengths and weaknesses of your case and address the issues brought up by the opposing parties head on. Also, note issues that are not clear and ask for clarification to obtain the necessary information. By engaging in an open dialogue, trust and rapport can be built which can help parties reach a resolution.
Tone
An opening statement should be consistent with your objectives at mediation, especially when it comes to tone. A respectful 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, aloof, or one that suggests that there is no room for concessions or compromise may be off-putting enough that the other parties just stop listening to your statements and “shut down.”. It’s important to speak in a way that will ensure you will be heard.
Choose Your Words Wisely
Counsel should be mindful not only of 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 unwillingness to negotiate. Even if unintended, this can come across as hostile and may have a negative impact on the mediation process.
Apologies
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, start to move past long-standing grudges, hurt feelings, or other emotional impasses, and build trust and rapport. However, any apology needs to be sincere and thoughtful; if the receiving party feels it is perfunctory, it may do more harm than good.
Technology
Consider using technology to emphasize and clarify your key points. Sharing your screen allows the parties to read a section of an important document or to view a video or pictures. These visuals can help the parties clearly understand your argument, especially when a scenario may be too complicated or lengthy to describe in detail. Using visual and audio aids can be beneficial in other ways as well. It makes it easier to keep the parties’ attention and provides alternative means to communicate your ideas to people who require 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. These cues can be an indication that an adjustment is needed to get back on track, or that some or all of the parties could use a short break.
Consider Whether Your Client Should Speak
When crafting an opening it is important to decide if there is value in having the client speak. If your client will be able to communicate effectively, their words can be powerful and instructive for all sides. 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 provides an opportunity to gauge how the party would come across during a hearing or trial.
Conclusion
Though some counsel may feel that opening statements are antiquated or unnecessary, I have seen first-hand how carefully planned and well-delivered openings can set the foundation for a positive and productive session. Putting a little extra time into preparation, and being conscious of the delivery, can lead to successful outcomes at mediation. Don’t underestimate the opportunities a well-crafted opening can bring.
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 lacey@schnappmediation.com or (647) 250-7216.
