Crafting Helpful Opening Statements

Often times, in mediation (and sometimes arbitrations), parties will waive their opening statements in an effort to get the process rolling. Is that necessarily the best step? Typically, I hear comments along the lines of “We all know what happened here, there’s no need to rehash it” or “The facts are really not dispute”. But, by waiving that opening statement, even if it’s only a minute long, are counsel shortchanging the process?

A good opening statement should not be confrontational. Parties are engaging (hopefully, voluntarily) in the mediation process; there’s no need to drop a grenade in the middle of the room before it even begins. But more importantly, an opening statement should include a brief review of the pertinent facts, good and bad. Same for legal arguments. Good and bad. By addressing both sides’ strengths and weaknesses, the playing field is leveled.

An opening statement should not be about “winning the case”, it should be about “Here are the impediments to getting a resolution with which we need help from a neutral.”

When both sides do this, and when each side hears the other side doing it, it creates a tone where everybody knows there is respect and earnestness from everyone at the table. The power dynamic struggle shifts from trying to gain the upper hand to being equals. The tone moves from adversarial to civil.

With that, resolution can be achieved.