Written by: Steven Mayans
Printed: October 2024
Opening Statements in Mediation … Are They Necessary?
“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.
- 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 decision-maker 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.”
- 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.
- 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.
- 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/alternative-dispute-resolution-committee.