The objective of a mediation opening statement is not about the truth of what happened, but the risks of litigation.
Published in Section of Litigation-Alternative Dispute Resolution Practice Points, February 24, 2021 © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
At a trial or hearing, your audience is the trier of fact—the judge, the jury, or the arbitrator. The advocate’s objective is to persuade the trier of fact with a compelling story that weaves together the facts and law and demonstrates that your position deserves to win. At a mediation, your audience is not the neutral—i.e. your mediator. Although your mediator will be paying close attention to the information and arguments that you provide, she will not use your opening to choose a winner. Instead, her task is to resolve the dispute by brokering a deal. To achieve this goal, your mediator will use your opening to analyze the matter from the standpoint of litigation risk and how best to get everyone to closure, but she is not your most important audience. Your target audience is the person(s) with settlement authority. Your adversary probably believes in her client’s position as sincerely as you believe in yours. Behavioral economics teaches us that we are unlikely to believe information that is inconsistent with that which we already believe. Trying to persuade your adversary with the same approach you use with a neutral is a mistake. Fortunately, you do not have to persuade your adversary that she is wrong in order for both sides to reach agreement and settle the matter.
The objective of a mediation opening statement is not about the truth of what happened, but the litigation risks, theirs and—if strategically appropriate—yours. You increase your adversary’s litigation risk if you use your opening to demonstrate yourself as a prepared and capable attorney and your client as credible and likable. You can speak to witnesses and documents you possess or that they lack. You can lay out a credible chronology with the intention of demonstrating how a jury or arbitrator might perceive your version of the facts which you show are supported by quality evidence. Though your adversary is unlikely to concede regardless of how strong your presentation, you may be able to raise doubt about their ability to win what they seek. You need to be heard if you are going to adjust your adversary’s expectations. To be heard, your tone must be perceived as credible and sincere, not as bombastic, insulting, or sarcastic. Employ a moderate tone. If your tone is accusatory and aggressive, there is less chance your message will be heard. If you are perceived as measured and objective, you stand a better chance. This is another departure from the theatrics of an opening to a jury and even from that to a judge or arbitrator. The right tone and approach also will help your mediator throughout the mediation in working with you and the other side towards a resolution.
A Few Tips
When considering your mediation opening, your mantra should be the catch phrase from the 1950s’ television series Dragnet. “Just the facts, ma’am.”
- Direct your opening to the settlement authority sitting on the other side of the table.
- Keep your tone neutral and professional. It is fine to remind your own client and that of your adversary that you will be obligated to take an adversarial approach at a hearing, but that the objective of the mediation is that of reaching agreement.
- Focus on litigation risk. You will never convince your adversary that, for example, the light was red. Your objective is creating some concern that the trier of fact may conclude that the light was red regardless of what color it actually was.
- Good intentions are all well and good with presenting your opening. But how you are perceived by the other side is what really matters. If you are not perceived as sincere and objective, you are less likely to have the impact you desire.