Perspectives from a Mediator/Arbitrator

Tuesday, January 30, 2007

Arbitration tips!

I am going to embark on a multi-part series on tips from the arbitrator. Similar to what I did previously about mediations, this will be a little less structured because there are a variety of things that I want to talk about and they will not necessarily go in the order of an arbitration - today's topic is Opening Statements. These are intended to be tips that anyone who is doing arbitrations should find helpful.

In particular, I want to talk about themes. Often, an opening statement is the first opportunity to tell the arbitrator "why are you here?" I do not want this to seem at all that I am belittling the process but - you need to tell a story. Tell it as much as you can like you would to a friend or like you would have to a colleague in the hall. Tell me what is great about your case! Tell me the interesting facts and/or the intriguing question of law. But equally important is to have a theme - a case about patient abuse in a nursing home can be "elderly people deserve to feel safe in their home" - a case about a job competition can be "Qualifications were not important - who you partied with after work was" or "You actually have to know something more than what a nail is to teach carpentry" These certainly are not the best examples but they provide an illustration of what I mean by "theme". Once you have set your theme - you can develop the importance of the theme in your opening statement.

There is a reason when we read to kids at night that we read stories - if you have a theme and then develop that theme - it is interesting, it keeps the listeners attention. We read stories for the same reason. As the person listening, I want you to tell me a story - if you start with a theme then I will have a basis or cornerstone for what you are telling me. If you pick the theme correctly, you can carry it with you throughout the case and use it at the start of your closing argument as well. Advocacy is all about persuasion. Think about the people you talk to and the things that you read and ask yourself the questions - 'why was that persuasive?, 'why did that make me think about my position? - often the answer is that it was a story well told which is often based on a very good theme.

Try a theme the next time you make an openinig statement and see if your client, the other side or even the arbitrator reacts.

Comments as always are welcome!


  • How much do you want to know in an opening statement? How much is too much?

    By Anonymous Anonymous, at 12:09 p.m.  

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