Perspectives from a Mediator/Arbitrator

Saturday, March 18, 2006

Mediation tip #3 - Opening Statements

I had a very busy week and as such have not had much time to add to the blog. As it was March Break for schoolchildren here in Toronto, I expected that many of my cases would not go ahead but they did.

The next Mediation tip is about Opening Statements. Traditionally, a mediation starts with a joint session in which all the parties and the mediator get in one room. After opening comments by the mediator, the parties are invited to make an opening statement. This may be made by the solicitor representing the party (i.e the Plaintiff), the party him/her/itself or both. You need to think about the purpose of the opening statement - who is it for? The client? The other party? The mediator? What needs to be communicated? What else might be communicated? I find that all too often the opening statement by the lawyer is for the client. Instead, it should be used as an opportunity to persuade the mediator and/or the other side about your position in the case. A good opening statment is measured, direct and concise. It should focus not only on the strengths of the case but deal with the weaknesses. It might also focus on the reasons why resolution would be superior to ongoing litigation. I think the best opening statements also indicate that there is a willingness to settle and usually involve some sort of acknowledgement of the position of the other party.

Mediations are stressful for the participants, even before they get going. An opening statement can work to reduce that stress and put the mediation on a strong footing towards resolution. I have found recently that people are interested in opting out of having an initial joint session and face to face opening statements - they find that the joint session is at best a waste of time and at worst counterproductive. I will write about having or not having a joint session in the my next mediation tip - Whether and When - The Joint Session.


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