Opening statements in mediation set the tone for the rest of the mediation process.
A mediation opening statement opens the mediation and begins the conciliatory process. Both the mediator and parties have the opportunity to set the stage for what they hope to accomplish and how they see the issues at hand. Because they hold so much power for each person involved, preparing one can feel overwhelming. Having a plan for crafting and sharing an opening statement is essential.
A plan will ensure that every necessary detail is stated and that the parties have a clear path moving forward. This article will outline a checklist for opening statements and help the mediator and the parties craft an opening statement that sets a collaborative environment and ensures that all parties’ interests are protected.
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 will be able to give opening statements at a mediation. The mediation opening statement will look very different from the parties’ statements—both in purpose and in the necessary elements. If looking to create a mediator’s statement, one should consider the following purpose of the statement and the necessary elements.
When crafting opening statements, it is important to keep the purpose of the mediation opening statement in mind. For a mediator, the purpose of the 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 prepares 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, a mediator should first 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 as well.
- 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 briefly say what the mediator believes the case is about. Ensure that 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 process for mediation, especially if any of the parties have never participated in mediation with this mediator before. The mediator should explain that after their statement is complete, the parties will have a chance to give opening statements. Then they will begin to negotiate, which will happen until the parties reach a resolution or agree that they will not resolve.
- Style: As a part of the explanation of the overall process, the mediator will also need to explain their style of mediation because it will help the parties know what to expect from them. This can include options like joint sessions, where the parties are all in the same room negotiating, or caucuses, where the parties are separated. The mediator is relaying offers and counteroffers to the parties from the other. It can also include the level of input the mediator is prepared to offer.
- Rules: The rules can come in several different places, but it is vital to the mediation for the mediator to share the rules that will govern the mediation during their opening statements. This should include an explanation of confidentiality if there is a confidentiality requirement or agreement. The confidentiality needs to 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 with respect and that the process is honored.
A mediator’s opening statement will be as unique as the mediator themselves. Drawing from their styles and comfortability, the mediator will ground the parties and focus the mediation on the case at hand. 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 it has vastly different purpose. This purpose drives the elements of the party statement. It encourages the parties to work together to create a resolution.
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 other party’s position, each party can gain the upper hand or control the narrative of the mediation.
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 come across as believable and approachable in their opening statement, or it will cause the mediation to fall apart. For example, suppose the mediator and the other party do not believe that 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 the fact that the audience is the other party. The mediator is not the audience for this opening because they are not the ones who will be making the decision.
The mediator will need to understand where the parties are at 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 important first step in crafting the opening statement. The correct understanding of the purpose will help create an overall understanding 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 brief 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 really about the minor points that 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: A party should indicate most of their strengths when giving an opening statement to help the other party understand their 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 their credibility.
- Weaknesses: Noting weaknesses in an opening statement may not be necessary; however, if there are weaknesses that are evident to the other party and the mediator, it may be worth noting, 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 that a party played in the situation. This can establish accountability and credibility. This 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 giving offers and counteroffers to the other 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 as well because it adds personality to the statement and emotion that the attorney will not be able to 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 talk about weaknesses and responsibility without that 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.
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.