The Mediator's Opening. How Important is the opening statement in Mediation and Arbitration?
The Mediator has a crucial opportunity to set the environment for the mediation in the Mediator’s opening statement and the rules of engagement for the parties’ first few minutes as the mediation is launched. Not unlike a chess game, the opening—the Mediator’s Statement and the design for the parties’ participation in the process—is crucial. The Mediator’s choice as to the initial presentation by the parties could be in joint session, but (a) by the parties advocates, (b) by the parties themselves, (c) by the parties with some (controlled) cross questioning, or (d) by the parties but separately, possibly reserving the possibility of a joint session for later in the process. The Mediator can set the rules here but may well want to coordinate with the parties’ advocates, if there are advocates, as this advance work presents the opportunity for a smooth start and hopefully one that will get the parties in the right frame of mind to negotiate and own a resolution, and get them to become active participants in the process, not just observers of the process.
The materials are helpful here in pointing out the opportunity and importance for each mediation participant of gaining advantage and/or contributing to the likelihood of success by careful thought about goals of the opening and how an advocate would present a client’s best positioning for a resolution most advantageous to the client. Do not skimp on the pre-planning! There are no controlling rules of court and no judge/arbitrator to be the decider of the procedure. This opens the door for advocates to be thoughtful and get creative, likely to the advantage of the prepared. It is an opportunity to select the weapons for the duel, and possibly even tip the scales a bit, say in getting “prejudicial” or “inadmissible” evidence that could be excluded by a motion in limine in front of the other party and thus influencing the upcoming decision making. Do not miss this chance.
Experience tells us a poor opening presages a poor result or possibly a failed mediation. Filling the procedural vacuum that attends mediations before they start is an extraordinary opportunity not to be missed.