Mediation Opening Statements

An Illustration of the Model Mediation Opening
An Illustration of the Model Mediation Opening

Article Clarifications:

1. A guideline or checklist of topic points was developed to cover a typical start-to-finish opening statement scenario. Those topic bullet points are designated in bold print but are not meant to be spoken.
2. Italic text enclosed in parentheses explains the mediator’s objective.
3. Bold text enclosed in parentheses are technical tips for your consideration.
4. Read the article twice. The first time take note of all the instructional objectives and technical tips. The second time omit the added notes and read the commentary uninterrupted.

Beginning Formalities

Good Morning/Good Afternoon
Welcome to your mediation session, please have a seat.
I’ll start the introductions. My name is__________, I prefer to be called__________.
Please tell me your name and how you want to be addressed.
(Using name tags, a seating chart, or place cards help to correctly address each person by name.)
(An opening question to any attorney in the room that both acknowledges the Attorney/Client connection and normally solicits a “Yes” is): “With your concurrence, is it okay for me to talk directly with your client?”

Let me acquaint everyone with our location. We have rooms ______ available for our use. The bathrooms are located ________. We have a small selection of drinks and refreshments for your convenience. We have a phone here for emergency purposes, and the number is __________. Notepaper has been given to everyone for use during the mediation. To eliminate interruptions, please turn off all electronic devices. If that is not possible for personal reasons, please turn off the ringers. As previously agreed, we will arrange for meals to be delivered if it becomes necessary to work through mealtimes. We have attempted to make this mediation session as comfortable as possible. Please let me know if there are any problems with the temperature, lighting, or seating arrangements.

All Relevant Mediation Paperwork
(Use a hand-to-hand process for the distribution of the Agreement to Mediate and all other necessary mediation paperwork. Give the papers directly to the attorneys or other pertinent parties present.)

Please take the time now to read over the Agreement to Mediate and the additional paperwork that I’ve provided to you. If everything is in order, please sign them. During my opening statement, I’ll be elaborating on most, if not everything, already contained in the Agreement to Mediate documents. I also remind you that you have agreed to pay the mediation fee at the end of this session. If additional sessions are required, those fees will be due at the close of each session.

Session Time Commitments
I recognize that some people’s schedules may have changed since this session was firmed up. Does anyone here have any time limit constraints that we need to know about? (If a concern is presented, you have the opportunity to use your mediator negotiating skills in resolving coincidental matters.)

Full Decision Authority
Before we begin this mediation session, I need to ascertain that we have all the right participants here. (Address the following questions to representatives from both parties.) Do you have the authority to make a determining decision on matters that you consider suitable for the resolution of this case? By that I mean, do you have full decision authority, or do you need to speak with another person who is not present before a decision is made? (If the parties with full decision authority are not present, ascertain who the final decision-makers are and develop an arrangement to work with the absent decision-makers.)

Opening Statement Presentations

The Mediator’s Opening Statement:
At this time, I will make my opening statement. Now is when you will be informed of what to expect, what your rights and entitlements are, and what to anticipate during this mediation session. When I have finished, I want to hear your opening statements without interruptions. For me to be effective and for both parties to have the best outcome of this mediation, I ask that you provide me with any information you have that will bring me up to date. (Here is where you want both parties to know that you will review any pre-mediation information, leaving out any confidential data, to ensure you have all the pertinent materials. You want to review any confidential material in private with the concerned party.)

Each Side’s Opening Statement:
It is your choice to select the person to make an uninterrupted opening statement. Whether that person is an attorney, the client, or both, that will be the way that I will hear the statement. As the mediator, it is my responsibility to support the direction of your presentations and participation as much as possible. I’ll write notes during your uninterrupted opening statement and may need to stop you momentarily to verify the accuracy of my notes. If anyone wants to say something while the other party is making their opening statement, do not interrupt and use the blank paper to write notes. You will have the opportunity to share your comments after the opening statement is finished.

Defining Mediation and Mediator

Let me clarify what the objective of mediation is and what part the mediator plays.

Mediation is a structured negotiation process used to resolve conflicts or disputes with the assistance of an impartial third party, the mediator. I’m your mediator and I’m here to assist you in negotiating a settlement. I have no power or authority to level fines, order you to do anything, charge anyone with contempt, or place anyone in jail. That is not why I am here. I am a neutral party to your dispute resolution.

The mediation process has been used by humans for centuries. Whether you realize it or not, everyone here has been a mediator at one time or another. If you’ve ever been in the middle of a disagreement between two or more individuals, whether it was adults or children, and you wanted to know what was going on, you became the third-party mediator. But, the difference between your mediator experience and my position as your mediator is that I don’t possess any personal stake in how this mediation session is concluded. I have an impartial position with no personal involvement.

The goal of mediation is to help all parties find a shared view so that their dispute can be resolved. This means, with your concurrence, that this session ends in an agreement. The mediation process has a track record of settling conflicts 75 percent of the time.

Your Rights and/or Entitlements

Each party in mediation has three standard rights and/or entitlements. (Include any other provisions required by court programs in the state where your mediation is conducted.)

1. Confidentiality:
Everything said during mediation is confidential. I will not share anything I hear here with anyone and I request the same adherence by everyone in this room. The majority of states view this process as settlement negotiations which means that anything said here is protected and inadmissible in court. Exceptions do exist. I am required to reveal confidential information about:

  • Any harm or harmful action, or threat of violence to anyone
  • Any past or current abuse of any sort
  • Any threat of abuse in the future (This is not required by all jurisdictions.)
  • Any additional confidentiality exceptions regulated by governing or organizational authorities

2. Voluntary
Mediation is a voluntary procedure. You are free to leave at any time if this session is not serving your expectations. If your attendance is court-ordered, it is expected that you will show good faith in the negotiations. (Not all courts require this). You are under no obligation to talk with me if you think about leaving. However, I ask that you speak with me as I may have a viewpoint that could provide you with additional valuable information for evaluation when you make your decision. Remember that whatever I say during mediation is solely for your consideration. You’ve already scheduled your time to attend this meeting, which is costing someone a lot of money, so it’s in your best interest to take full advantage of the allotted time. We need everyone’s cooperation to reach a conflict resolution. And, if you can’t reach a resolution, we can at least clarify or minimize the concerns in your dispute.

3. Neutrality

As your mediator, it is my responsibility to provide you with neutral assistance in your negotiations. It is my obligation to prove my neutrality. To my knowledge, I do not recognize anyone here. I now ask if anyone here recognizes me. (If you or any of the participants recognize each other, it must be immediately revealed. Then the nature of the recognition or relationship needs to be fully examined. This is an opportunity to use your mediator skills while you establish trust and respect.) To further explore whether we have had any prior contact, you should know that I have been, done, and acted in ________ roles. Has anyone here had any connection with me in any of these positions? (You must fully examine the details of acknowledged past contacts. After all explanations have resulted in your ability to serve in a neutral capacity, you want to ask all other parties if there are any additional questions, concerns, or comments. The mediation can then proceed by asking for each party’s permission.) “May I continue to serve as your mediator?” Remember that I serve only one purpose as your mediator, and that is as someone who assists in the negotiation procedure.

No Advice Permitted

It is not within my position to provide any specialized or technical advice to anyone. When you signed the Agreement to Mediate, you agreed to seek such advice from the appropriate authorities of your own choosing. (Ensure this statement is consistent with the signed documents.) Please, do not ask me for or depend on me for any legal, financial, or other forms of advice.

No Witness Availability

I want to remind you that in your signed Agreement to Mediate documents, I will not be called as a witness for any party if your dispute is not settled here and goes to court.

(The Mediation Process Ground Rules is for Informational Purposes Only – Not for Narration. While mediation ground rules are not always required, desired, or developed, you may see a need to develop and review the rules. If the parties agree that rules need to be a part of the process, you should seek input from the parties during the development. Any rules you want to include the need to be minimal.)

The Mediation Process

You’ll want to know what happens during mediation. It helps to know that when all parties are together for a mediation it is called a Joint Session. That means we all will remain here and listen to all opening statements. After the presentations, with everyone’s concurrence, we can stay in the joint session. However, if I or anyone from one of the parties wants to have a private meeting, that private meeting is called a caucus and can be immediately arranged.

The way a caucus works is that I will privately meet with one party. At the end of that caucus, I will relay our discussion to the other party in another caucus. I will also ask if you want anything you said to be held in confidence. Be assured that if you make such a request, it will be honored. As I move back and forth between caucuses, I may be spending more time with one party than the other. This in no way implies any favoritism towards one party over another. The time difference is in how long it takes for me to relay the information to the other party or how long it takes for you to relay your information to me.

Because the objective here today is to work towards a mutual resolution agreement, please use the time that I am in caucus with the other side to come up with some proposals that you can agree to that the other party might consider acceptable. It’s important to remember that in many negotiations you will not get everything you want, there must be some give and take on both sides. I ask you to keep an open mind and to think about offering some flexibility so that both sides can effectively reach a workable resolution. This might include a consensus on clarifying and limiting the conflict to those major issues in this case that will enable both parties to resolve their disputes amenably. While you have full control of the mediation outcome, in a court scenario you have little to no control of the outcome.

In the event that this joint session ends without a resolution, there may be a need for one or more sessions. If that should be the case, the governing rules regarding caucuses will apply to those sessions to include continuing adherence to confidentiality requests.

Validate Agreements
Any agreement reached during this session will be documented in writing whether it resolves some or all of the disputed issues. If the written agreement states the understanding of all parties then everyone will sign the original document and copies will be made for everyone here and for anyone else with a need for a written agreement, including court officials. If all of your issues have been settled here and this dispute is continued in court, this joint session agreement generally will conclude the court’s concerns. (Depending on the rules applicable for the joint session, the attorneys designate the individual to draft an agreement. If no agreement is drafted at the joint session, I recommend that a memorandum of understanding be written and signed by all participants.) If no agreement is reached, you may want to examine other available options such as additional joint sessions, Arbitration, or court actions.

Concluding Mediator Opening Statement
This concludes my opening statement. Thank you for your attention. At this time, I will address any questions or comments you may have for me. (After you have answered any queries it is time to invite the involved parties to present their opening statements. Address either party or state:)

Please, let me hear your opening statement.

Mark Fotohabadi
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