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
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.