The first time take note of all the instructional objectives and technical tips. 4. It gives them an opportunity to have their voice heard and to have people listen to their story from their unique point of view. Lawyers who have barely been civil sit face to face. The importance and impact of a mediators opening statement is key. In the past, mediators would open a mediation by asking for opening statements from lawyers for each party. November 30, 2019 / by Teddy Snyder. The following statement has worked well for me in some 500 mediations. Having clients speak in the opening, wherever possible, can be powerful and instructive for all sides. The answer is almost always, yes. In short, an opening statement should not be adversarial, but should be devoted to demonstrating an attitude of wanting to reach a resolution of the dispute at hand. I do not mean to suggest that this is the mediators chance to show off. Objectives for the opening statement Set the tone, Do expectation management, Use neutral language, Facilitative non-directive approach. An advocates mediation opening statement is different from an opening at trial or at an arbitration hearing because the audience and the objective are different. 4. Heres how to know whether you should make an opening statement in your case. Show Your Hand. This is particularly useful in family mediations. The opening conference is one of the most awkward times of a mediation. Mediation Opening Statements. In many ways, one of the most important statements counsel will make at mediation comes at the very outset, by way of their opening demands and offers. General Purposes of Opening Statements. Often mediation is the only chance the case has had to date to personalize both sides. To help you, I will stress three things: One, your voluntary participation. Many attorneys wrongfully view the opening statement in mediation as the functional equivalent of an address to a jury that is intended to convince both mediator and opponent of the absolute When I began participating in mediations thirty years ago, it was customary for the adverse parties to meet, to shake hands (remember that? If there is an agreement that opening statements will be conducted, it is always important for the mediator to determine and direct the proposed format of the presentation. it is often presented in a man-ner that is insulting to the other side and creates an even greater rift than already existed. Creating doubt in the other party regarding their case should enhance their flexibility. (1) To show the other side that you are serious and prepared, and will be a formidable opponent at trial. I am your mediator today, which means that I am here to help you and to aid your efforts to resolve your conflict. Are you comfortable with using first names? air disputesidentify the strengths and weaknesses of their caseunderstand that accepting less than expected is the hallmark of a fair settlement, andagree on a satisfactory solution. If you have any questions, you may ask me now. Please confirm that you have got at least four-hour time to engage in this mediation. An informative and productive opening session can set the groundwork for both the lawyers and the mediators to have a productive day resulting in the resolution of the case. I practice the facilitative model of mediation. The opening session also allows an opportunity for the mediator, particularly in cases of some factual or legal complexity, to demonstrate to the attorneys and the parties that he or she has a grasp of the issues. advance of mediation. Set initial agenda. As you think about what you want to say in the opening conference, keep in mind your goals in making an opening statement: To communicate information about the case to the mediator. One caveat: the term opening statement can also describe what the mediator says before the parties open their mouths. Many parties pay little attention to the importance of the opening address, wrongly believing that the mediator will be doing all the hard work later on in the mediation and nothing of importance can come out of the opening statements. The mediation is the only opportunity to do this. Italic text enclosed in parentheses explains the mediators objective. Opening presentations for success. Often this step is necessary for them to move on towards reaching a settlement during the mediation. 3. Thank you for your attention of my opening statement. Being clear about what the party is seeking to accomplish specifically, meeting their interests will increase the chance that they will get their interests met. My O/S will tell you about your rights and entitlements, what to expect, and what will occur here to give you a heads-up as to what to anticipate in this, your mediation. That is a good time for the lawyers to briefly explain why they have made the decisions they have made about their negotiation limits. 5 Key Reasons to Make a Mediation Opening Statement 1. It is an opportunity for the mediator to accomplish several objectives: establish their presence in the room, their credibility, and communicate their role as the advocate and enforcer of the process. Some parties are veterans of the mediation process, for others it can be a new and confusing process. How wrong can they be? That is, it must have a purpose first of all, and that purpose must contribute to the mediation process. Your first paragraph should tell the mediator who you represent, who the opponent is, summarize the claims and explain what is at stake.
For example, they allow the mediator to explain clearly the process to the parties. An opening statement is useful any time a mediation can benefit from an injection of humanity. ), 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 By Joan Stearns Johnsen. The mediator's introduction is an opportunity for astute counsel to glean important information about the mediator, his preferences, and his style. A carefully planned opening statement can change litigation dynamics even where a resolution does not seem likely. You may not have a jury at mediation, but you still have an audience. Thats not the focus of this blog, though Folger and Bushs assertion: The opening statement says it all (1) applies equally well to both. This should be short and to the point. What each party is seeking to accomplish: This section is both an important and often misunderstood part of a mediation statement. Any dispute regarding whether opening statements will be conducted may require early intervention on the mediators part . A mediatee, unless they have been in a previous mediation, do not know what their role is: what to expect, how to react/respond and behave. Parties that have not spoken in months are suddenly shoved into a room together. The objective of a mediation opening statement is not about the truth of what happened, but the litigation risks, theirs andif strategically appropriateyours. At mediation, your goal is to reach a settlement, assuming it can be done on terms that are fair and reasonable for your client. mediation. Therefore, it is important that the mediator have multiple opening statements that are customized to the particular clients. Times have changed. It is your job to convince your opponent of the strength of your case, not the Mediators. It is your job to convince your opponent of the strength of your case, not the Mediators. I am now going to make what mediators call an opening statement (O/S). The mediators role is to ensure that this is covered in the opening statements so a mediatee can act authentically in their role. Establish roles including mediators role as manager of the process. 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. The opening statements of the mediation process serve a number of purposes, and they are therefore necessary before moving on to the open session. For example, they allow the mediator to explain clearly the process to the parties. You will need to help them untangle these issues so that you can focus on each individually to create steps in How wrong can they be?
Develop constructive relationship between mediator and participants. In addition, they help to show the mediator just how far apart the parties are on the issues. Example of Mediator Opening Statement. You dont need to persuade the mediator of anything. A mediatee will often start with the thought of Here are four reasons to make an opening statement. A simple way to start the mediation with all the participants present, and after the mediator has given a brief opening, is to ask the participants You increase your adversarys litigation risk if you use your opening to demonstrate yourself as a prepared and capable attorney and your client as credible and likable. Here are five tips to for a more effective confidential mediation statement: Be upfront. Best for all concerned, parties and their lawyers, to pay very close attention. After Im finished with my O/S, Id like to hear an uninterrupted O/S from you. The opening statements of the mediation process serve a number of purposes, and they are therefore necessary before moving on to the open session. 2. Many parties pay little attention to the importance of the opening address, wrongly believing that the mediator will be doing all the hard work later on in the mediation and nothing of importance can come out of the opening statements. Its even better than what you can do with your written position paper or mediation statement. Develop confidence in the mediator. Few things are more likely to lengthen the mediation process or derail it completely than an ill-conceived opening demand or offer. Read the article twice. To show the other side that you are serious and prepared, and will be a formidable opponent at trial. Establish behavioral expectations (ground rules) Determine and foster commitment to mediate cooperatively. An opening statement should help that process, not inflame the other side. Mediators' Opening Statements Offer Insights for Successful Results. Bold text enclosed in parentheses are technical tips for your consideration. It is an opportunity to speak directly to the client on the opposite side, without any filtering by their counsel. As the legal community evolves in the effective use of mediation as a case settlement tool, it is becoming clear that attorneys' opening statements in a joint session play a Published in the "Mediation Strategies", A column for the Daily Journal, California's legal newspaper. Mediation is inappropriate when: Alcohol or drug abuse impairs a partys ability to make important decisions. There is mental incompetence. One side is completely out of control emotionally and cant be consoled. A participant cannot advocate for himself and has no representative. The Parties Relationship. Good morning, I am , from the mediation program. The most important purpose of the Opening, in my opinion, is to help the other side understand the case that you will present in court that a judge could accept. You may not have a jury at mediation, but you still have an audience. Otherwise, whether an opening statement is given depends on its purpose. The mediation process exists for you benefit, which is why it can be voluntary. One can learn a lot and enhance the prospect of amicable settlement at the beginning. For example, i t is not The importance of opening presentations in mediation The surrounding circumstances to the issue. Problem was, though, these were typically so inflammatory that a meeting which was supposed to be about resolution started with animosity. The mediator will hardly explore opening statement and mediator, mediate a successful and communicate as they become necessary. To show the other side that you are serious and prepared, and will be a formidable opponent at trial. important phases of the whole process, as this allows you to gain, maintain and increase your control over what happens during the bargaining phase. When one stranger has inadvertently hurt another, that's a good time to have them actually see each other in mediation. At a trial or hearing, your audience is the trier of factthe judge, the jury, or the arbitrator. from mediations than those who do not make this important distinction. The primary function of the opening statement in the context of mediation is to help the other side appreciate the strength of your position and your ability to sell it to a jury if the case doesnt settle. Even if the other side is fully aware of all the facts you discuss, part of what they will be doing is evaluating you as an opponent. parties have appeared before the mediator before for others it is there first experience with this specific mediator. The tendency for many attorneys is to direct opening remarks to the mediator.
Media literacy skills are defined as the abilities to access, analyze, evaluate, create, and act using all forms of communication (National Association for Media Literacy Education, 2010).Traditionally, the teaching of these skills was relegated to the K-12 At the same time, parties are often reluctant to share their interests out of Reasons to Make an Opening Statement 1. Your opening statement is one of the best opportunities that you have at a mediation to make an impact on the process. Start by checking who is who. A mediator's opening statement can make all the difference in the world to the ultimate success or failure of a mediation. Yalda T. Uhls, Michael B. Robb, in Cognitive Development in Digital Contexts, 2017 Parental Mediation of Media Literacy. If you think that an opening statement will actually diminish the chances of settlement, then it makes sense to skip it altogether. Every mediators opening statement will be a little different. Also, please confirm that you have the authority to make final decision without others consent whom is not present today. You can set the mood and create the agenda. Set against this backdrop, the opening statement at a mediation is an important piece of advocacy. The advocates objective is to persuade the trier of fact with a compelling story that You may start your opening statement. ____ The Mediation Process ____ Joint session ____ Caucuses: confidentiality ____ Additional sessions ____ Agreement ____ Explain the agreement process ____ Writing/signing the agreement ____ If no agreement is reached, explore next steps ____ Closing ____ Thank everyone for their investment, being patient, and listening ____ Are there any questions?