Opening statements in mediation set the tone for the rest of the process. They open the mediation and begin the conciliatory process. The mediator and parties can set the stage for what they hope to accomplish and how they see the issues. Preparing can feel overwhelming because opening statements hold so much power for everyone involved. Having a plan for crafting and sharing an opening statement is essential.
A plan will ensure that every necessary detail is stated and the parties have a clear path forward. This article will outline a checklist for mediation opening statements and help the mediator and the parties craft an opening statement that establishes a collaborative environment and protects all parties’ interests.
Working through this checklist will allow participants to feel confident that they are ready for mediation and the resolution that can be achieved.
Mediator’s Opening Statement
As mentioned above, the mediator and the parties can give opening statements at a mediation. The opening statement will look very different from the parties’ statements regarding the purpose and necessary elements. If looking to create a mediator’s statement, one should consider the following purpose of the statement and the essential elements.
Purpose
When crafting opening statements, it is important to remember the purpose of the mediation. For a mediator, the purpose of the mediation opening statements is to ground the parties in the present and acquaint them with the process.
Parties will often feel confused, overwhelmed, or distracted at the outset of the mediation. A good opening statement will put the parties at ease and create a spirit of collaboration that the parties can build off of. The mediator’s role is not to dominate the mediation. Instead, the mediator will direct the conversation, ensure the parties stay on track, and encourage resolution when possible. Keeping their role and the statement’s purpose in mind can help a mediator craft opening statements that prepare the parties for the process ahead.
To accomplish the purpose of the mediator’s opening statement, it will be necessary for the mediator to include the following elements. Consider this a checklist for creating an opening statement:
Introductions:
At the outset of the mediation, mediators should introduce themselves and the parties or representatives to each other. Establish the correct way to refer to each person in the room by first name, last name, title, or another identifier. It can also be helpful to establish pronouns for everyone in the room, and the mediator sharing their own can help the parties feel comfortable sharing theirs.
Experience:
After everyone has been introduced, the mediator may give a short list of their experience or ways they have helped past clients. This is particularly important if the parties did not hand-pick the mediator but were assigned one from an organization. The mediator can help the parties feel at ease by telling them how many cases they have mediated and how often that mediation results in a settlement. They can also outline some past examples of similar mediations within confidentiality that can help the parties feel as though the mediator is a good option.
Case:
While the mediator should not outline the entire case for the parties, it may be helpful to state what the mediator believes the case is about briefly. This will ensure everyone is on the same page or give the parties a point to jump off when explaining why they see the case differently. Additionally, explaining the case in a sentence or two can demonstrate to the parties that the mediator is prepared to oversee the case and understand what the parties need.
Process:
Next, the mediator should outline the rest of the mediation process, especially if any of the parties have never participated in mediation with this mediator before. The mediator should explain that the parties can give opening statements after completing their statement. Then, they will begin to negotiate, which will happen until the parties reach a resolution or agree that they will not resolve.
Style:
As part of the overall process explanation, the mediator must also explain their mediation style to help the parties know what to expect from them. This can include options like a joint session, where the parties are all in the same room negotiating, or caucuses, where the parties are separated. The mediator relays offers and counteroffers to the parties from the other. This joint session can also include the input level the mediator is prepared to offer.
Rules:
The rules can come in several different places. Still, the mediator must share the rules governing the mediation during their opening statements. This should include an explanation of confidentiality if there is a confidentiality requirement or agreement. Confidentiality must be outlined, especially in cases where the mediator intends to introduce caucuses, which can help the parties feel confident in sharing information with the mediator.
Additionally, the mediator should lay out any ground rules necessary to ensure that the parties are treated respectfully and that the process is honored.
A mediator’s opening statement will be as unique as the mediator’s. Drawing from their styles and comfortability, the mediator will ground the parties and focus the mediation on the case. Whether it is their first mediation or their thousandth, a mediator prepares the parties to move forward. They include all the necessary elements and step into a mediation, confident they can resolve the case.
Party Opening Statement
Once the mediator finishes their opening statement, it will be time for the parties to share their opening statements. These statements will look very different from the opening statement given by the mediator because they have vastly different purposes. The purpose of the opposing party statement is to encourage the parties to work together to create a resolution.
Purpose:
The purpose of a party’s statement is to convince the other party that they have a strong case. By sharing the strengths of their case and what they see as weaknesses in the opposing party’s position, each party can gain the upper hand or control the mediation narrative.
Unlike the mediator’s statement, which was more introductory and orienting, a party’s statement has a clear purpose and aims to take control. In most cases, it is also necessary to establish credibility and eliminate any air of hostility. This means that a party should appear believable and approachable in their opening statement, or it will cause the mediation to fall apart. For example, suppose the mediator and the opposing party do not believe the party is ready or willing to participate in mediation. In that case, participation will be challenging all around.
An essential aspect of an opening statement in mediation, as opposed to an opening statement at arbitration or trial, is that the audience is the opposing party. The mediator is not the audience for this opening because they are not the ones who will be making the decision.
The mediator must understand where the parties are and how they view the case to guide them through the issues, but they do not have the final say regarding the outcome. Understanding this is an essential first step in crafting the opening statement. The correct understanding of the purpose will help create an overall sense of the case and what is necessary.
Like the mediator’s opening statement, there are elements that each party can include in their opening statement. However, unlike the mediator’s statement, including everything on this list is unnecessary. Still, each element should be considered and evaluated to determine if its inclusion is necessary to achieve the party’s goal. Some elements to consider using in an opening statement include:
Facts:
A party’s opening statement should include a summary of the facts in the case to help the parties compare how they see the situation causing the dispute and where some facts overlap. It is important not to go into great detail with the facts because it will be a waste of time.
Everyone knows the overall facts. It is about the minor points each party needs to determine whether they are the same or different. This should be approached as someone who has nothing new to add to the matter.
Strengths:
When giving an opening statement, a party should indicate most of its strengths to help the opposing party understand its position both in the mediation and in any litigation that could result if the mediation does not resolve the issue. It is crucial to highlight strengths without exaggerating them to the point that one ends up with an issue with its credibility.
Weaknesses:
Noting weaknesses in an opening statement may not be necessary; however, if weaknesses are evident to the other party and the mediator, it may be worth noting them, in the beginning, to add credibility and account for those weaknesses. Noting one’s weaknesses allows that party to drive the story and the reasons instead of having the other party use it to their advantage later on. Accounting for weaknesses will likely strengthen a position.
Responsibility:
In some cases, depending on the situation, it may be worth acknowledging any responsibility a party may have for the overall situation. Consider how the situation arose and the part a party played. This can establish accountability and credibility. It can also influence bargaining power because the party that accepts responsibility can often back up their willingness or unwillingness to move based on proportionality from the responsibility portion.
Interests:
It is also important to note a party’s interests and needs. Outlining a party’s needs and wants allows the party to set a standard for what they need from the mediation to consider a settlement. Outlining these needs allows the parties to make informed and conscious choices when offering counteroffers to the opposing party. If the parties understand what the other needs, they will be more likely to reach an agreement without a long and exhausting process.
Personality:
A party should consider how much of the opening statement will be given by the party’s attorney and how much, if any, will come from the party. Relying on an attorney can be helpful because it allows the party to shape what is said, and the attorney will know what to say and how to say it.
Alternatively, it can be good to have the party speak because it adds personality to the statement and emotion that the attorney cannot replicate.
Power Dynamic:
This is less of an element and more of a consideration. The parties should consider whether a power dynamic would influence the rest of the elements. Suppose the power between the parties is dramatically weighted toward one side.
In that case, the party without as much power may be unable to discuss weaknesses and responsibilities without being taken advantage of. This can shape the rest of the statement, so it is necessary to consider it.
Tone:
The final element or consideration is the tone with which the statement will be shared. It is essential to approach the opening statement to start the conversation rather than dominating the conversation. Stay away from accusatory language. When a party approaches an opening statement with a cooperative tone, the mediation will start on a strong foot.
Conclusion
When preparing an opening statement for mediation, whether one is the mediator or the party, it is vital to prepare appropriately and run through a checklist of considerations for the statement. Following these checklists of elements and considerations will help each person craft an opening statement that sets the appropriate tone and gives the mediation a head start toward resolution.
Contact ADR Times to learn more about drafting a mediation opening statement, mediation, conflict resolution, and more!
While in law school, Emily served as an executive editor on the Pepperdine Dispute Resolution Law Journal and had the opportunity to learn about ADR from world-class professors of the Straus Institute for Dispute Resolution.
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