There is an ongoing debate over the benefits of including opening statements in mediations. Opponents claim that allowing opposing parties to make (possibly vitriolic) statements, outlining the strengths of their respective cases and the weaknesses of the opposition, is the last thing needed right before the parties attempt to resolve their dispute. Supporters contend that opening statements, when handled properly, permit each side the unique opportunity, perhaps for the first time, to personally present their stories and to hear relevant facts and law that may help to guide the parties toward the needed resolution.
The answer, as to whether to allow opening statements, can be found in the ultimate flexibility that is inherent in the alternative dispute resolution process. Before the mediation starts, a mediator has the ability to review the type of case involved, as well as the nature and demeanor of the parties and their counsel. Since not every case is the same, the mediator’s analysis of that case, including the respective expectations of the parties and counsel involved, can be used to determine whether the mediation should begin with opening statements or in separate caucuses.
Certainly, many find positives in holding opening statements. One of the strongest advantages of permitting such statements might be the opportunity for the parties, who may have simply been passive observers in the proceedings thus far, to directly participate in the process and be made aware of the time and energy involved in ongoing litigation. Further, a party’s participation in opening statements allows the individuals involved to have their voices heard, which may itself be a significant component in the settlement process. Many times, certain parties are only seeking “to be heard” or to “have their day in court”. Having the party participate in opening statements helps to meet this need and can oftentimes create further opportunities for settlement.
If handled correctly, a joint session with opening statements may restore the intended civility that should be part of such litigation. If the statements are cordial and the parties are able to meet face to face, it may help to diffuse any hostility that existed as a cause of the original dispute, as well as to ease any acrimony that may have developed during the preceding litigation.
Opening statements may allow for the parties to share their positions in a confidential environment and convey the evidence that may help to better instruct the parties on their respective risks of litigation. Obviously, opening statements can help to directly educate the mediator. Listening to opening statements and the recitation of the main factual and legal issues in the dispute might provide needed insight for the mediator who is charged with helping the parties reach a resolution. Finally, joint session opening statements may assist in the consideration of some of the intangibles of the case, including the quality of the lawyers involved and the effectiveness of the parties as potential witnesses at trial.
Of course, there is the other side of the coin. If handled aggressively, opening statements could easily derail a potentially successful mediation. Tone is crucial in the delivery of the opening statements. If the opening statements are argumentative, rather than conciliatory, they may create further animosity and distance between the parties, taking what would otherwise be an opportunity for discourse and dialogue and replacing it with a situation where scorched earth becomes the goal.
At the end of the day, if the parties and the mediator agree to participate in joint opening statements, here are a few guidelines to consider:
- Brevity is important. Franklin Delano Roosevelt once said, “Be sincere; be brief; be seated”. The same is true for opening statements.
- Use the time to thank the other side for participating and demonstrate appreciation for their decision to participate in mediation. It is true that most cases will settle, especially those that participate in this type of alternative dispute resolution approach.
- Visuals add to a presentation and power point programs are often successful. “A picture is worth a thousand words.”
- You can be an advocate for your client but try to avoid finger-pointing or negative assertions in your opening statements. At this point in the case, the facts are the facts. Arguing them as a method to inflame or insult the other party will fail to motivate the parties toward a successful resolution.
For thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation. Scott can be reached at [email protected] or 404-364-4626