By: Jeffery Grubman
The mediation process has evolved significantly over the past few decades. Mediation was initially viewed skeptically by trial attorneys who envisioned themselves as warriors ordained to try cases rather than settle them. With courts increasingly overburdened, mediation became a popular forum to resolve disputes. Because trial attorneys were not accustomed to the mediation process, the process initially looked somewhat like a court hearing or a trial. For example, in the early days of mediation, opening statements in mediation looked and sounded very much like an opening statement at trial. Trial lawyers in the early days of mediation, and many trial lawyers still today, had a difficult time finding the balance between advocating their clients’ position while proceeding in a conciliatory manner consistent with the goal of settlement. In part due to attorneys’ discomfort with finding that balance, it became commonplace in many parts of the country for attorneys not to make opening statements in mediation. This trend has gained popularity in Florida in recent years. The stated rationale for not making an opening statement is that the parties will become angry and more entrenched in their positions, thereby decreasingly the likelihood of settlement. While there is certainly a risk that a party will recoil when hearing their opposing counsel’s opening, the decision by an attorney not to make an opening statement is often a wasted opportunity. Mediation is typically the only opportunity during the course of litigation for an attorney to speak directly to his or her opposing party. A well prepared and delivered opening statement goes a long way towards achieving a favorable settlement for one’s client. The key to making an effective opening statement in mediation is recognizing who is your audience and constructing a presentation that will persuade your audience to settle the case on more favorable terms for your client. Having conducted a couple of thousand meditations, I have observed that many attorneys believe their audience is the mediator or their opposing counsel. While the mediator and opposing counsel may have input into the terms of a potential settlement, those players are not the audience. Any benefit to be derived from delivering the opening to the mediator or the opposing counsel will be minimal. The audience is the opposing party. The opposing party is the decision maker and that opposing party must be persuaded. Also, unlike the attorney and mediator who have participated in countless meditations and feel like they have heard it all, typically this is not the case for the opposing party. Therefore, the opening should be directed to the opposing party.
The tone and content of the opening should be based upon the facts of the case and the state of mind of the opposing party. For example, if an attorney is representing a defendant in a case with significant liability and a sympathetic plaintiff, the defense attorney should be as conciliatory as possible. I have seen defense attorneys apologize to plaintiffs in the mediation opening, with the apology being warmly received and setting the mediation off on exactly the right footing. On the other hand, if the opposing party has a weak case and needs a strong dose of reality, the attorney should make a strong but professional opening. If a party with a weak case hears a powerful opening from a skilled and talented opposing counsel, it will likely persuade that party to settle the case on less favorable terms than he or she expected when starting the mediation.
Far too often, I have seen attorneys deliver mediation openings that are perfunctory and lack both conviction and care. This is a disservice to one’s client. Perhaps having not sat in both caucus rooms, these attorneys do not realize the importance of a mediation opening and the negative impact they are causing their client’s settlement position. On many occasions, parties have told me that they will settle on less favorable terms for their opponent based upon the opposing counsel’s weak opening. On the other hand, many other parties have candidly told me that they were impressed with their opposing party’s opening and their opposing party came across as a decent and competent attorney. While those parties would not be so candid as to tell me that they would enter into a more favorable settlement for their opposing party based on the opening, I could tell that they would.
In conclusion, while there may be appropriate circumstances to skip opening statements in mediation, attorneys should think long and hard before doing so. And, when making an opening statement, the statement should be well prepared, strike the proper tone, and be directed at the opposing party.
Jeffrey Grubman is a mediator and arbitrator with JAMS. He is based out of the Boca Raton and Miami offices but mediates cases nationally. His practice focuses on commercial/business, employment, securities/financial services, and intellectual property. The following is a link to his bio: www.jamsadr.com/grubman. The information contained in this article does not constitute legal advice and are his opinions and not the opinions of JAMS.