Some practitioners look to bypass opening statements in a Mediation session – operating under the belief that they have heard it all before and, therefore, the parties are better served by getting “right down to business.” And while this Mediator may agree that 3 ½ hour PowerPoint presentations can dull the senses and delay the start of an effective Mediation, the rejection of opening statements altogether is far less productive.
To begin, while most (if not all) of what is being brought forth in an opening statement may not be news to the litigators, that is certainly not the case for the Mediator or even the client representatives. This Mediator will attest that even after reading the most detailed pre-mediation submissions with voluminous accompanying exhibits, there are undoubtedly one or more issues which shine through via the opening statements. Indeed, it is not uncommon for even the other side’s counsel to indicate in the initial private caucus that he or she heard a point in the opening statement for the first time. Perhaps it is a matter of emphasis or simply the distillation of claims or defenses in order to make a concise and impactful opening statement, but therein lies the value.
As lawyers, we tend to think we know it all – that we have explored every nook and cranny of our case and that of our adversary to the point where there can be nothing new and there are no surprises. But that conceit ignores how themes, testimony and documents might be perceived by the Mediator and/or the client representative sitting across the table.
Recently, I conducted a Mediation session where long-disclosed documents, painstakingly vetted and analyzed beforehand, were addressed in an opening statement – not in the manner they were being digested by the sophisticated business folks and attorneys – but in the fashion that might be understood and processed by laypeople on a jury. It was rather remarkable and, in fact, caught the other side off-guard. It clearly had not been part of the attorneys’ dialogue prior to the Mediation and was not brought forth in the written submissions. Evidently, it began to evolve in the preparation for the Mediation itself and, frankly, it had the flavor of a work in progress. Nonetheless, the nascent approach played a role in the negotiations which followed because it foreshadowed what the future might hold if the case were to be tried.
Even in a less dramatic setting, the opening statement allows one to convey intangibles – beyond the factual/legal arguments – directly to the opposing client representative. Why would one want to forego that opportunity? It is the time to communicate preparedness and conviction, tempered by a willingness to maintain an open mind and to seek common ground. And although admittedly superficial, do not discount the value of making a positive impression on your adversary’s client from first appearances and initial exchanges.
The bottom line is that those who believe that parties should fast forward through opening statements at Mediation might be right – if they were being presented solely to opposing counsel. However, that is not the audience with whom they should be concerned. Opening statements are for the Mediator and the adversary’s client. Do not underestimate how ears less familiar with the granular details of the case might hear broader themes and issues – to which the attorneys themselves may have grown tone deaf through the course of the litigation process.