There’s quite a bit of mixed advice on the importance of an attorney opening statement in mediation today. Some attorneys often waive opening statements in mediation and go directly into negotiations.
Some mediators even encourage the practice of not making opening statements because they believe that attorneys shouldn’t have quite as much power as they do during mediation, and they’re concerned that these opening statements might not make mediation as productive as it should be. The reality, though, is that there is no greater mistake you could make than avoiding an opening statement in this situation.
5 Key Reasons to Make a Mediation Opening Statement
1. Create the Right Tone for the Session Ahead
Mediation is about connecting the two parties so they can come to an agreement before the case goes to trial. Often mediation is the only chance the case has had to date to personalize both sides. Many people characterize the opposing party poorly, but the reality is that there are two people on either side of the case, and humanizing it is an excellent way to start.
That’s where creating the right tone in the mediation opening statement is so important. You have the opportunity to present the real issues on both sides, and that can mean disarming problems instead of creating further issues within the case.
2. Help Reassure Your Client
Your client may have no more experience in a court than what they’ve seen on television, so they may be a little unsure what to expect out of you. Making an opening statement can help your client understand that you are taking their case seriously, and you are ready to pursue it as far as it needs to go, even if that means taking it to trial eventually.
If, however, you simply say nothing during your chance to make an opening statement, they may be concerned that you’re not taking their case seriously enough.
3. Build A Sense of Understanding for the Mediator
Mediators don’t always get as much information about the cases in advance as we’d like to think.
As a result, they may walk into the case completely unaware of what’s happened and how it needs to move forward. If that’s the issue, this is your chance to really help the mediator understand what’s at stake and what the true issues are within the case.
4. Frame Your Key Arguments Early
You have essential arguments that need to be placed on the table before the two parties even begin to negotiate, and your opening statement is the time to make them.
This is especially true if the case has been pending for some time and things have changed repeatedly during the case. You want to get the arguments out there as soon as possible so everyone knows that the facts are out there, and they’re in your favor.
5. Make It Clear That You Are Ready for Trial
Mediation is sometimes a chance for each side to evaluate each other, and you need to appear to be a formidable opponent. An opening statement can help you do just that.
With a good opening statement, they’ll understand that you’re a prepared attorney who is willing to put everything into this case and move forward whether it’s during mediation or during a trial.
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