French: To skip or not to skip the opening statement in mediation

More often than not, lawyers opt out of opening statements in mediation for a variety of reasons. Common rationales include: opening statements will only heighten emotions and negatively impact negotiations; the parties already know the key issues and mediation time is better spent on negotiating settlement terms; and we don’t want to disclose our litigation strategy before depositions or a decision on one or more issues.

When opposing counsel suggests parties should opt out of opening statements in mediation, a common reaction (that I am guilty of) is to agree. Opening statements require substantial time and attention, including rehearsal, and the presentation itself can be stressful. By skipping the opening, lawyers can avoid that pressure and preparation. Taking a pass is an easy out. However, does that make it a good idea? Should it be the rule, rather than the exception? Is forgoing the opening statement in the client’s best interests?

My personal view and experience is, in most circumstances, delivery of an opening in mediation is critical to the success of the mediation. By giving the opening, you are demonstrating a level of trial readiness and confidence in the merits to the opposing parties and the mediator. You’re also educating the mediator about the strength of your client’s position and the seriousness of the matter. In addition, you’re arming the mediator with information that will empower them to make inquiries while caucusing with your opponents. Your opponent’s opening also will provide invaluable information on what they believe the evidence will be and how it supports their position on the merits. This, moreover, may be the only time before trial the opposing party hears directly from you on your client’s view of the case without it being filtered through their attorney. Finally, your client will know they’re receiving competent service, that you are there to protect their interests and understand the strengths and weaknesses of their case.

So, how do we avoid the oft-expressed downside to openings in mediation?

First, use technology. A PowerPoint presentation allows your audience to visualize what the evidence will be and can be somewhat of a shield between you and your audience, as your opponent’s eyes and attention will be on the presentation and not necessarily you. If you have the benefit of critical deposition testimony, consider inserting key passages verbatim or playing video clips. If the judge has issued a ruling on one or more key issues, quote the judge. Using a court ruling or your opponent’s words to establish your client’s case is often compelling and difficult to counter.

Second, stick to the purpose of an opening statement — focus on what the evidence will be and how that evidence establishes each element of your client’s claims or defenses. Unlike argument, evidence is something every party must face, and that should be considered in determining the terms of a fair and equitable solution. Evidence is a source a mediator can use to their client’s advantage to influence the other side regarding its settlement position during mediation caucuses. Evidence is fundamental information that can allow a mediator to determine whether to use one or more mediation tools — such as bracketed bargaining or making a mediator’s proposal — if it appears the parties are at or near an impasse. Having to face the evidence should never provide an excuse for any party to become emotional or threaten to end a negotiation.

Third, avoid opening content that uses adjectives or any unnecessary characterizations of the evidence that could frustrate the goal of achieving the best settlement terms possible. An overly aggressive opening statement usually evokes an emotional reaction by the other side. Avoid statements that may signal an unwillingness to compromise or your client may not intend to mediate in good faith.

Finally, consider ending with a settlement proposal that includes compromise terms and an explanation as to why they’re fair. Doing so will arm your mediator with a starting point for discussion in the other room and should minimize unintended emotional response from the other side.

You should also prepare in advance for the opposing party’s opening statement. Identify key issues your client must be prepared to face and develop a strategy to counter points made by the other side. Ready your client to sit quietly through the opposing opening statement. Assure your client you’re prepared to address each issue raised. Identify weaknesses in your client’s positions so there are no surprises. Consider alerting your client to the fact that emotion may signal weakness and should be avoided during mediation.

Circumstances exist that merit a decision to pass on the opportunity to present your client’s opening position. Some examples include:

Complex commercial cases involving multiple sophisticated parties, where the merits have been fully briefed and argued but not finally decided.

Family law matters.

Personal injury matters involving serious permanent injury or death.

Probate and estate disputes involving family members.

When next you are faced with the opportunity to opt out of making an opening presentation in mediation, consider the many important benefits to your client, the mediator and the process. In most instances, opening statements provide far more value to the process than not.•

• Peter S. French is a partner in Taft’s litigation practice group. Reach him at [email protected]. Opinions expressed are those of the author.