Opening statements during mediations are generally a given. However, there are a growing number of attorneys and mediators that choose to forgo the opening statements process. I am in agreement that most mediations are better off skipping opening statements.
My experience has been that Defendants are more insistent on having opening statements. They tend to believe that Plaintiffs will suddenly “see the light” and realize that their claims are not as valuable as they thought. Defendants think that they can change the Plaintiff’s mind. However, this never happens. All that opening statements accomplish is that they anger both sides and causes them to further entrench themselves in their position. Opening statements do nothing to close the gap between two sides and do nothing to help settle cases.
At mediation, the case has progressed far enough that both sides already know the strengths and weaknesses of the case. Both sides know the risk of trial. Both sides know the high cost of litigation. There is nothing new to learn during an opening statement. Especially in highly emotional cases, opening statements can greatly anger both sides.
In cases where the mediator or either party insists on opening statements, it is imperative that attorneys on both sides strike a conciliatory tone. I believe that admitting the weaknesses in your case displays self-awareness. I also think that beginning an opening statement with a light compliment for the other side softens the mood as well. When delivering the strengths of your case, I think that it can be effectively presented without rubbing it in by raising your voice or insulting the other side. Nothing can doom a mediation quicker than a hostile opening statement.
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