Mike was excited. The classes were over at last, the internship was done, and he’d been approved for the civil panel. Today was his first solo mediation. He opened the door and strode in. The lawyers and their clients looked up expectantly at Mike. He froze. What should he say next?
The mediator’s opening statement is more than a personal introduction. It serves multiple purposes, each important to the success of the process:
Creating good feelings conducive to settlement.
Studies have shown that a positive emotional atmosphere increases joint gains, decreases the use of hardball tactics, lowers demands, increases concessions and promotes creativity, all of which logically increase the likelihood of settlement. (1) Conversely, negative emotions decrease the likelihood of settlement. Allred, Mallozzi, Matsui, and Raia found that angry negotiators gained less and had less desire to work with each other in the future than did the more positively inclined group. They also found that there was no payoff advantage to anger, (2) though other studies posit that angry negotiators claim more value in distributive bargaining scenarios, by intimidating their counterparts. (3)
Barry and Friedman suggest that our expectations are directly related to our success – the better we expect to do, the better we are likely to do. (4) Finally, Sigale Barsade of The Wharton School demonstrates that emotions are contagious. We often experience emotions displayed by those around us, and can affect their feelings by our own displays. (5)
What all of this means is that a mediator should model and promote good feelings, and create expectations of success during the opening statement. Ensure that the physical surroundings are as comfortable as possible. Smile. Be friendly. Show confidence, even if you’re nervous.
Emphasize the likelihood that, with hard work, settlement can be reached.
Reports of mediation success rates vary, with some sources reporting it is successful an astonishing eighty-nine percent of the time (6). Whatever the exact rate, mediation succeeds far more often than it fails, and the high potential for achieving settlement should be stressed during the opening statement, as a means of motivating and reassuring the participants.
Present yourself as an outstanding neutral.
Theoretically, anyone can act as a mediator – the term is defined as “a neutral person who conducts a mediation.”(7) But you were chosen. Why? Is it your conflict resolution training? Your professional experience? Your subject matter expertise? Even if you were randomly assigned from a panel, you got on the panel because of something. Whatever it might be, stress your relevant strengths to the parties. This isn’t bragging. It is a way to build useful optimism in the parties that will bring them closer to settlement. (8) And a good outcome could get you chosen again.
Explain the process.
One way to put people at ease is to let them know about the road ahead. What issue or issues is/are on the table today? Will all of you be around the table? Meeting privately in separate rooms? Will someone be participating online? Will you as mediator be contributing your ideas or only shepherding the interaction? Is there a time limit? Who will be talking? Lawyers? Clients? Both? Will you keep statements made in private caucus secret from other parties by default or only if the parties expressly ask you to do so?
Be sure that you are talking about your process. Mediators sometimes identify themselves as using an “evaluative,” “facilitative,” or “transformative” style. In theory, each style has particular characteristics. But in reality, mediators use what works for their clients, and what makes them comfortable – one tool here and another there. (9) A good mediator is always learning and trying new things.
Be sure to talk about confidentiality, which has been called “the heart of mediation,” because it encourages open and truthful conversation about the matter in dispute, potential liability and possible avenues of settlement. (10)
California has one of the most comprehensive mediation confidentiality statutes anywhere. In summary, evidence of a statement or writing made in preparation for, during, or pursuant to a mediation or a mediation consultation is neither admissible or discoverable in a civil case. (11) In addition, a mediator is generally incompetent as a civil witness (12). There are exceptions and limitations to these rules.
For one thing, they only relate to legal testimony and evidence. There is nothing to prevent a party from discussing mediation related events with friends, neighbors, co-workers – even the press. The parties may wish to enter into a written mediation confidentiality agreement prohibiting disclosure. The court will enforce these. (13) Some neutrals carry form confidentiality agreements, in case the parties decide they need one. That way the session is not delayed.
Discussion of exceptions to mediation confidentiality and of the desirability of a confidentiality agreement should be left to counsel, not the mediator. It is the general rule, not the exceptions, that increases the chance of settlement.
Conflict of Interest Disclosure.
Under California Rule of Court 3,855 (b), mediators have a continuing duty to be aware of, and to disclose as soon as possible, facts reasonably raising questions about their impartiality, including “(A) Past, present, and currently expected interests, relationships, and affiliations of a personal, professional, or financial nature; and (B) The existence of any grounds for disqualification of a judge specified in Code of Civil Procedure section 170.1.”
Section 170.1 lists grounds for disqualification of judges “for cause.” They are that the judge:
- (i) has personal knowledge of disputed evidentiary facts concerning a proceeding
- (ii) has served as a lawyer in it or for one of the parties;
- (iii) has a financial interest in the subject matter of the proceeding;
- (iv) is related to a party;
- (v) is related to someone who is a lawyer for a party;
- (vi) for any reason, believes that his disqualification would further the interests of justice,
- (vii) [believes] that there is a substantial doubt as to his capacity to be impartial,
- (viii) [has a belief that] a person aware of all relevant facts might reasonably entertain a doubt about his ability to be impartial.
If after disclosure the parties waive grounds, the mediation can continue. If some but not all parties waive grounds, the mediation can continue with the consenting parties. But if the mediator believes he or she cannot be impartial, he or she must withdraw.(14)
Because disclosure must be made as soon as possible, it probably will have occurred before the opening statement. But because it is a continuing obligation, there may be a need for disclosure at the opening.
Commitment to the process.
The opening of the mediation is a good opportunity to solidify the parties’ commitment to obey productive ground rules, like being civil, being prepared, speaking in turn, using the time to work toward settlement, not being judgmental about others’ suggestions, not blaming or attacking, focusing on what might work instead of on what hasn’t worked, listening to others, and so on. The mediator could either bring a form which each party signs or ask a series of questions (Do you agree to do X?) to which the parties respond positively.
Getting parties to agree to these ground rules may seem unnecessary. But it has an important purpose. Parties can be held accountable for their prior agreement. Further, simply making the statement that you will do something increases the likelihood of compliance. Human beings have a need for internal consistency. Information or actions inconsistent with our committed beliefs causes us anxiety. This is known as “cognitive dissonance.” We will work to eliminate the dissonance (15) – often by complying with prior agreements.
Eric van Ginkel proposes an interesting, but somewhat counter-intuitive, ground rule. He suggests using the opening statement to normalize lashing-out behavior as “venting,” so that disputants will not feel intimidated by it, and going into private session when it becomes excessive, to restore the balance.(16)
However, this technique should be used carefully, since giving permission in this way could lead to a counter-productive increase in emotional outbursts. Going into private session with the offender after an outburst also might cause resentment akin to being sent to the principal’s office.
These concerns aside, the advice is interesting because it shows that the opening statement can be used not just as a source of information, but to forestall potential issues. For example, the mediator could tell parties that spending longer with one party does not indicate favoritism or dislike.
Finally, neutral Lee Jay Berman suggests that counsel use the opening statement as an opportunity to “size up” the mediator and take cues about what he or she wants. (16) Similarly, an attentive mediator can glean clues from the participants’ demeanor and behavior before and during the opening statement.
Because an opening statement can have such an impact on the process, a careful mediator will practice before the session until he or she is comfortable, but stay ready to adapt it to the needs of the particular session.
(1) Thomson, L. Neale, M. and M. Sinaceur “The Evolution of Cognition and Biases in Negotiation Research: an examination of cognition, social perception, motivation, and emotion” in The Handbook of Negotiation and Culture (2004) Michele J. Gelfand and Jeanne M. Brett (Eds.) at Table 1.4, p. 28. See also Barry, B. Fulmer, I. and G. A. Van Kleef, “I laughed, I cried, I settled: The role of emotion in negotiation,” in Gelfand and Brett, supra, at pp. 75-77,
(2) Allred, K. G. Mallozzi, J. S. F. Matsui, and C. P. Raia, “The Influence of Anger and Compassion on Negotiation Performance,” 70 Organizational Behavior and Human Decision Processes 175
(3) Van Kleef, G. A. “Emotion in conflict and negotiation: Introducing the emotions as social information (EASI) model” IACM 2007 Meetings Paper Van Kleef suggests that differing outcomes angry of displays flow from the parties relative power and the perceived appropriateness of the display in the relevant situation.
(4) Barry, B. and Friedman, R. A., “Bargainer Characteristics in Distributive and Integrative Negotiations.” Journal of Personality and Social Psychology, 1998, Vol. 74, No. 2, 345-359, at 347.
(5) Barsade, Sigal G., “The Ripple Effect: Emotional Contagion In Groups (October 2000). Yale SOM Working Paper No. OB-01. Available at SSRN.com (last visited 05/12/2013)
(6) Brett, J M., Goldberg, S. B. “Grievance Mediation in the Coal Industry: A Field Experiment.” 37 Indus. & Lab. Rel. Rev. 49 (1983-1984) See also “Avoiding Trouble: How Mediation is Good for Your Business.” (reporting 85% success rate). http://www.madetomeasuremag.com/avoiding-trouble-how-mediation-is-good-for-your-business Fall/Winter 2011 (last visited 05/12/2013) (reporting 89% success).
(7) CA Evid. Code §1115(b).
(8) This is not to say that you should embellish the facts. If you appear to be dishonest, you will lose all credibility.
(9) Stempel, ‘The Inevitability of the Eclectic: Liberating ADR from Ideology.’ 2000 J. Disp. Resol. 247; Lande, J. “How Will Lawyering and Mediation Practices Transform Each Other?” 24 Fla. St. U. L. Rev. 839, 872-74 (1997).
(10) Mosten, F.S. “Mediation Confidentiality”, California Lawyer (Oct. 2011)
(11) CA Evid. Code §1119 provides:
- (a) "No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be give."
- (b) "No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.”
- (c) "All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.”
(12) CA Evid. Code §703.5
(13) Mosten, supra, fn. 10
(14) See CA Rule of Court 3.855 and CCP 170.1
(15) Harmon-Jones, E., & J. Mills. (Eds.) ... Cognitive Dissonance: Progress on a Pivotal Theory in Social Psychology. Washington, DC: American Psychological Association, at 188.
(16) van Ginkel, E. “The Mediator as Face-Giver” 20 (4) Negotiation Journal 475, at 479 (Oct. 2004)
(17) Berman, L.J., Neutrals Reveal Tips with Their Opening Statements.” http://www.mediate.com/articles/bermanLJ8.cfm (last visited 05/15/2013)