Joe Tirado and Amanda Greenwood, International Bar Association - Mediation Techniques
8 November 2010

The Mediation: Opening Statements

After the mediator’s opening, it is usual for the mediator to invite each party to make an opening statement. There has been some debate as to the value of or the need for such statements.

The power of a clear and well-crafted opening statement should not be underestimated. The opening phase of the mediation is often the first time in a long while (if at all) that the parties have had the opportunity to address one another face to face.

The tone and the content of the parties’ opening statements set the scene for the remainder of the mediation. The mediator should therefore ensure that each of the parties is aware that they will be asked to make an opening statement well in advance of the mediation so that they have adequate time to prepare.

Sometimes one or both of the parties will express a reluctance to give an opening statement in a joint session. However, the opening statement is an invaluable opportunity for each of the parties to tell their story uninterrupted, to hear the other side’s perspective and to obtain new information. It also allows the parties to formulate and understand their own case better as well as giving them an early opportunity to identify topics, interests, aims and objectives. For all of those reasons, and many others, it is usually a mistake for a party to forgo the opportunity to give their own or to listen to the other side’s opening statement.

The authors recall a mediation involving complex tax issues following the multi-million dollar acquisition of a company in Europe by a US corporation. The dispute had been running for a number of years. Scepticism was expressed by opposing counsel for the need for opening statements as the case was ‘well understood’ by the parties. Nonetheless, the parties agreed to provide short openings statements. Opposing counsel went first and set out its position in the form of a not untypical 20 minute statement that said nothing that could not be read from the papers. We responded with a succinct five minute statement that sought to crystallise the essence of the dispute and set out a way forward to reach a resolution. The response from the opposing side’s CEO, who was present at the mediation and who was not a details man, was to thank us for making it clear to him for the first time what the case was really about. The dispute settled a few hours later.

Depending on the reason for a party’s reluctance to give an opening statement, a mediator faced with a party that does not wish to give an opening statement in joint session, may well try to encourage that party to re-think its decision in view of the perceived benefits noted above. It will sometimes help if the mediator emphasises the confidential and without prejudice nature of the mediation process at this stage. A reluctant party can also be reminded that they are free to leave the joint session at any point if they feel that they must do so. If a party continues to refuse to meet in joint session to give its opening statement, that party should be invited to give an opening statement to the mediator in private session (at least initially). Having done so, that party may then feel more comfortable delivering an opening statement in a joint session, if that is appropriate in the circumstances.

One of the first procedural matters for the mediator to decide is who will deliver their opening statement first. If proceedings have already begun, it is commonplace for the mediator to invite the claimant to begin. If there is no natural claimant, however, the choice will be more difficult. In making a decision, the mediator ought to be conscious that the beginning of the mediation is a particularly sensitive time; the parties and their advisors are likely to be carefully focussing on the actions of the mediator during this phase and may be looking for any significance in the decisions that the mediator makes. With this in mind, the mediator may like to preface any decision they make about the order of the opening statements with a comment that there is no particular rationale for the choice that has been made and that each of the parties will be given an opportunity to speak.

An alternative approach is for the mediator to ask the parties to decide who will go first. This can be done in advance of the mediation. Often the parties will choose an order without much difficulty and this can be a helpful first step as it signals the parties’ willingness and ability to cooperate with each other from the outset, providing a platform for consensus building on more substantive matters as the mediation progresses. However, if the parties cannot agree on who will speak first, the mediator will then need to mediate this aspect of the dispute in the same manner as he or she would deal with any other issue, taking care to endeavour to resolve the matter as quickly as possible in order to prevent the parties becoming disillusioned with the mediation process early on.

When preparing their opening statements, the parties will usually give consideration to who will deliver their opening statement – the lawyer, the client, or both? Some mediators express a preference that the parties (and not their lawyers or other advisors) speak during the opening phase. This is usually on the basis that mediation is a party driven process and that the expression of emotion by parties in the opening phase often facilitates the resolution of the dispute. It helps parties buy-in to the process and gives them that all important ‘day in court’ feeling in the relative safety of the without prejudice environment of mediation overseen by the mediator. If the lawyers deliver the opening statement, on the other hand, this can stifle and filter out the emotional aspects of the dispute and thus remove one of the key benefits of the opening statement. There is, however, sometimes good reason for a lawyer or other advisor to deliver the opening statement, particularly if a party feels unable to speak so early in the mediation process. The authors recall representing oversees clients in UK based mediation where the mediator and opposing side were English. Our client was extremely sensitive at the risk of being ‘home-towned’ and so they were very keen to have their English counsel make the opening statement. A combined approach often works well with the lawyer addressing the legal issues and their client speaking to the factual issues and commercial objectives.

Whilst there is no universally accepted formula for an effective opening statement, any party (or advisor) preparing an opening statement for mediation would be well advised to consider some or all of the following:

• Humanise – introduce yourself and your team;
• Language – speak carefully, with respect and use neutral language avoiding personal attacks;
• Legalese – in so far as is possible, avoid legalese or other technical language;
• Persuasive – try to be persuasive but avoid emphasising highly controversial or confrontational issues – point scoring or initiating debate at this stage is likely to be counter-productive;
• Interests – focus on interests and not positions and try to acknowledge the needs and interests of the other party/parties;
• Open – don’t conceal or avoid obviously relevant issues (doing so may diminish trust);
• Belief – emphasise a belief in the mediation process, let the other side know you are approaching the process with good faith and intend to listen to what they have to say; and
• Optimism – finish on a positive and optimistic note.

During the opening phase of the mediation, the mediator ought to:

• remind the parties at the beginning (and if necessary during) the opening statements that they should listen carefully to what is being said by the other party/parties without interrupting;
• listen actively, to what is being said by each of the parties, whilst keeping an open mind;
• encourage the parties to speak directly to each other (rather than to the mediator) – it is after all the decision makers from the other party/parties that need to be persuaded, not the mediator;
• at the end of each opening statement ask any members of the same team whether they have anything to add to what has been said (this is particularly important if the lawyer has given the opening statement or if the key decision maker has not contributed to the opening statement);
• at the conclusion of each opening statement ask any clarifying questions that the mediator has about particular issues addressed in that opening statement; and
• acknowledge the contribution the party giving the opening statement has made before moving on to the next opening statement or the next phase of the mediation.

Some mediators will give the parties a guide as to the expected length of their opening statements. Others will leave the length of time to the parties themselves to decide. There are no set rules governing the appropriate length of time for an opening statement, but generally speaking it is rare for one party’s opening statement to exceed 45 minutes and they are often finished in ten to 15 minutes. If an opening statement appears to be dragging on and/or is becoming repetitive, the mediator may choose to gently ask the person speaking to bring an end to the statement as quickly as they can or give them a further five minutes to finish.

After the opening statements, dialogue between the parties may begin to flow naturally. If this happens, the mediator may encourage the parties to continue for as long as such dialogue is constructive. The mediator may then try to identify the main issues and create an agenda for the remainder of the mediation. The process is flexible and at this stage, the mediator will decide whether it is best to continue with the mediation in joint session, have a short break before continuing in a joint session, or to break into private meetings with each party.

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