Opening Statements in Mediation: Will They Become Extinct?

When I began participating in mediations thirty years ago, it was customary

for the adverse parties to meet, to shake hands (remember that?), and then for each

side to present what amounted to a brief or sometimes extended “opening

statement.” The attorney for each side would lay out the case, and this might be

followed by an alternating series of rebuttal arguments which would either exhaust

themselves after two or three rounds or which would cease upon the mediator’s

admonition about “diminishing returns.”

This manner of beginning a mediation session has had no shortage of

detractors. Most commonly, a party or a mediator would complain that argument

across the table by parties in close proximity would serve primarily to antagonize

one another and risk generating a hostile atmosphere. This, of course, is

deleterious to fostering a cooperative atmosphere. In addition, some mediators

seemed concerned that the dynamic of opening statements ceded control of the

process from them to the attorneys – and indeed that sometimes did occur.

Such unwelcome effects were, however, relatively uncommon in my

experience. Perhaps because the attorneys involved in insurance and reinsurance

disputes are typically highly professional, opening statements usually are made

dispassionately, without table-thumping or ad hominem attacks. Only a handful of

times have I seen a mediation deteriorate because of ill will ensuing from opening

statements.

Currently, with many mediations proceeding remotely, physical proximity

often is absent and thus some of the visceral, and potentially volatile, impact of a

personal confrontation during a joint session is subdued. Nevertheless, the usage

of opening statements appears to be continuing to diminish. There is an

understandable eagerness of parties to “just get to the numbers” without

delay. Even if opening statements will not risk hostility, they consume valuable

time. With the frequency of mediations increasing, this is quite understandable in

light of the demands mediations place upon the time of participants.

So do opening statements have any continuing value? I have certainly seen

them positively contribute to settlement momentum, when they are effectively

presented and when they are primarily informational rather than overtly

adversarial. In my experience, if the parties are agreeable to opening statements,

the mediator can gauge their likely efficacy, by meeting separately with each counsel prior to the mediation session and exploring the extent to which statements

can be constructive. (Certain cases – particularly those involving complex

mathematical concepts – can benefit quite a bit from a statement accompanied by a

graphic presentation). The mediator may inquire of counsel:

1. Will your statement provide fresh information or perspective? For

example, counsel, having read the opposing written mediation statement, can laser

in on the most important issues in a manner that takes into account the opponent’s

points. Note also that the points that bear most upon the merits of a lawsuit are not

always fully congruent with those that bear upon the benefits of settlement.

2. Are there mathematical or financial concepts that can optimally be

presented by power point? For example, I have seen highly effective presentations

demonstrating via dynamic graphs how insurance coverage should be allocated

among multiple policies.

3. Are there other facts, concepts, or arguments that can best be

depicted graphically? For example, videotaped testimony of a witness who

presented very strongly (or very poorly) provides information that may be absent

in a dry written transcript excerpt.

4. Will the party provide substantive responses to questions at the

close of the presentation?

5. Will the presentation avoid ad hominem attacks or other aspects that

might cause the other party to react with hostility?

In my experience, a mediator who takes the time to work though these

issues in advance of a mediation session, and who is confident enough to maintain

control over the session, can properly support the use of opening statements in

appropriate instances, while helping to ensure they are constructive as well.