Lawyer making opening statement in mediation

“The world is made, not found.” (W Barnet Pearce)

I had been a mediator for about 10 years before I heard parties’ initial words described as their “opening statement.” This may surprise some readers, though probably not if they began, like me, in family mediation, nor community or workplace. Other descriptions are available, as our broadcasters say. I set out below a range of alternative approaches to this crucial invitation. In reconsidering opening statements in mediation I’m not suggesting one way is superior to another. I hope, rather, to hold our practice up to the light and think about the world we make with the words we choose.

One caveat: the term “opening statement” can also describe what the mediator says before the parties open their mouths. That’s not the focus of this blog, though Folger and Bush’s assertion: “The opening statement says it all”(1) applies equally well to both. Words have consequences, and the language we choose at the start sets the tone for what’s to come.

Family Mediation


Family mediators tend to work directly with their clients. Lawyers are rarely present and it’s exceptional, in this jurisdiction, to make much use of private sessions (caucus). Mediator intros are brief. Parties are too busy with their own thoughts to take in much of what’s said. I don’t recall being taught a precise formula for the next step in a mediation, but the aim was clear: identify “the issues.” Family mediators learn early that inviting someone to tell their story is asking for trouble. Some ramble; some accuse; some start away in the past; some wind themselves into fury or sadness. So we stress brevity. I think my initial opening was: “What would you like to talk about?” I soon stole a better phrase from a colleague, and my standard invitation was shaped: “I’m going to ask two simple questions: what do we need to tackle and what do you hope to achieve?”

Notice the choice of pronouns. “We” are going to tackle things, informed by what “you” hope for. The mediator consciously promotes joint problem-solving while keeping an eye to the future. The world we hope to bring into being is one where separated parents make the shift from adversaries to allies. It’s painstaking, one-step-forward-one-step-back work. It can take several sessions and the focus is relationships as much as resources. Some find family mediators controlling, though we’d probably counter that we’re keeping things on track. In this blog I described a fellow-practitioner telling a conference that a family mediator “got it wrong.”

Workplace Mediation


Workplace mediators also work directly with the individuals concerned, though as disputes escalate parties are more likely to be accompanied by representatives. Despite sharing a working relationship, people may have endured years of unhappiness. Their livelihood and identity probably feel under threat. Unlike family mediation, there is no “best interests of the child” to provide a shared incentive. Many consider severing the relationship, whatever the cost, rather than continue in an unbearable situation.

Workplace mediators also tend not to ask for opening statements. As well as the length and accusatory tone described above, the term’s formality invites an adversarial approach. It mirrors formal processes like grievance procedures, where the logic is to convince the authority figure (now the mediator) that the other person is in the wrong. This tends to trigger equal and opposite accusations from the other party. The session can rapidly descend into an attack/defend spiral.

A good example of an alternative beginning can be seen this mediation video by ConflictMasters. First the mediator asks parties to “explain to each other” three areas (discussed in pre-mediation):
1) “What you feel has brought us to the point we’re sitting in mediation today?
2) What’s been the impact of what’s happened on each of you?
3) And what you see as the way forward?”

She deflects the flow of information away from herself; it will be between the people concerned.

They could of course still seize the opportunity to rehearse their grievances. However, this invitation sets the scene for a broader discussion including both personal impact and future improvement. The mediator gives herself permission to move the conversation along if it gets stuck on past difficulties. The world workplace mediators are trying to make is a problem-solving conversation between colleagues. It can be difficult and painful. But the goal is to find a way forward they have shaped and, as a result, can live with.

Community Mediation


I’m not a community mediator, nor have I had that training. However, I’ve noticed those colleagues using yet another expression for what comes next after their introduction: “uninterrupted time.” This seems infused with a commitment to empowerment and implies a certain mediator minimalism. If the parties begin to negotiate unaided most community mediators are happy to take a back seat. Scottish community mediation organisation, SACRO, claims this lets parties “state what has been happening, how it is affecting them, and how it feels.”(2) The world this term seeks to make is one where people have the chance to speak on their own terms, at their own pace and about their own lives.

Commercial Mediation: “opening statements”


Here we draw closer to a world familiar to lawyers. We have “disputes” rather than conflict, “parties” rather than people and “settlement” rather than resolution (despite the blanket term dispute resolution). Mediator websites prime their clients to prepare opening statements(3) as well as written “position statements”(4). Tips for the opening statement itself include “Focus on litigation risk”(5); “demonstrate that you are a worthy adversary… remember [it] is about convincing the opposing party that you have the better case”(6); and the rather stark admission “it gives both counsel and the mediator an opportunity to see how the party would come across during a hearing or trial”(7).

What world are we making? To be fair to the commercial mediation community, mediators’ websites mostly stress constructive possibilities for the opening statement. Lawyers and clients are encouraged to avoid personal attacks and tee up a cooperative exchange, while not being a pushover. One US site wisely reminds us that “the objective of the mediation is that of reaching agreement”(5). In practice, however, recent evidence suggests that despite these good intentions a good number of lawyers equate opening statements in mediation with opening remarks in court.

Debbie De Girolamo’s fascinating study of commercial mediators applies Goffman’s concept of “frames” to “answer the question ‘What is going on here?’”(8) A frame has a primary meaning (e.g. opening statements as a constructive start to negotiations) but this can be altered or keyed by what actually takes place: “the activity of the primary frame is transformed into something other than that provided by the original frame” (9).

Before the mediation she observed mediators and lawyers discussing opening statements that would encourage settlement. Yet in the mediation itself the claimants’ solicitor quickly keyed the frame, narrowing the focus to bolster his clients’ position. The defendant’s solicitor then re-keyed the frame to stress his own confidence and strength. As a result the mediation morphed into “a strategic bargaining game where perceptions of weakness are defended by shows of strength underpinned by tactics of the competitive bargainer” (10).

Some may not find this particularly shocking. After all, both parties want to do as well as they can, even in mediation. Yet it is hardly surprising that the term “opening statement” contains an implicit invitation to litigators to do what they know best. In court the open statement is pitched at an adjudicator. It has no business emphasising willingness to settle; quite the opposite. It is rhetoric, highlighting strengths, downplaying weaknesses, and parrying the opponent’s attacks. In the mediation above, the frame of cooperative resolution is immediately changed into something else. Once invited to make opening statements, the lawyers conduct adversarial debate.

What world are we making?


Opening statements in mediation will be with us for a while yet. They undoubtedly serve a purpose. The term conveys a need to prepare along with a certain formality. However, words carry multiple meanings, and mediators need to be aware of the world “opening statement” can create. Like the word “neutral” it is a borrowing from legal culture. It can therefore engender a world of zealous advocacy and adversarial debate, or at least of negotiation in the shadow of the court. If that’s what mediators seek, well and good.

The time may have come, though, to rethink the invitation. I’ve laid out examples from other contexts. Commercial mediators have shown great ingenuity holding space for cooperative, problem-solving negotiation in a litigation setting. I look forward to hearing of alternatives to the opening statement that invite parties into the world mediators want to make.

References


1) Folger, J.P. and Bush, R. A. B. (1996) Transformative mediation and third-party intervention: Ten hallmarks of a transformative approach to practice. Mediation Quarterly 13(4) 263–278.

2) SACRO (undated) Community Mediation: Helping to Build Positive Communities

3) Vinden, P (2016) Preparing for Mediation: The Power of the Opening Statement

4) Wittingham, R (2022) https://www.adrgroup.co.uk/disputeresolution.aspx?p=171″>How to Prepare for Mediation

5) Johnsen, J. S. (2021) Opening Statements in Mediation

6) Silverman, S. J. (2018) Seven Tips for a Winning Mediation Opening Statement

7) Schnapps, M. (2019) Open With Strength: The power of opening remarks in mediation!

8) De Girolamo, D. (2020) The opening statement in mediation: a Goffman analysis. in Moscati, M., Palmer, M., and Roberts, M. (eds) Comparative Dispute Resolution, pp. 103–115, 105, citing Goffman (1974).

9) Ibid. p. 106

10) Ibid. p. 110


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12 comments

    1. Thanks Tom. It’s interesting that this poses a question, not dissimilar to what workplace or family mediators do. It would certainly focus the opening statement on the future.

  1. A timely discussion. It reminds me of 2 things:
    1. We usually do our best work when we behave in a situation-specific way – answering the question ‘what is appropriate in this situation?
    2. Narratives are powerful. They light up (and keep lit up) our temporal lobes in a way that facts and data do not. Letting parties tell their stories -‘I would like to share with you how I see things’ – can be powerful and constructive and open the door to an ability to understand and deal well with differences. I am always disappointed when the lawyers silence their clients (who mostly have something to say if encouraged) and hijack the opportunity for a valuable narrative by making an opening address which signals a legal fight.

    I’d love to see you write more on this Charlie.

  2. Hi Charlie – My first question to each party in intake is “What are your thoughts about meeting John/Mary next week?”

    It’s a personal humanised question that is deliberately non-outcome focused. I can pick up pretty quickly where they are emotionally and help them shape their story. I can also witness the power relationship between them and their lawyers. I work with lawyers in the joint session.

    It’s the stories that connect people and are far more powerful and influential than a list of what they want. It starts with two stories gradually merging into one as the mediation progresses.

    Sharing the story in intake with the mediator allows the mediator permission to revisit it at strategic times during the mediation either in joint session or private caucus. It’s a particularly powerful intervention when trying to close the final gap. People often negotiate in the head but settle in the heart. Except perhaps family law where they negotiate in the heart but settle in the head.

    Coming to the opening statements by the parties in the mediation itself, I inform them in the intake that the question I’m going to ask them after I have completed my introduction is:

    “What thoughts come to you as you sit here today?”.

    I ask them to speak to me rather than the other party. It allows each party to hear each other stories in the context of the dispute. My summary is the first step in joining the two stories into one common one.

    It is a fairly manipulative approach to the extent that I can subtly, and sometimes not so subtly, help them refashion the story away from accusations about the other party.

    The intake and the introductory joint session go together. They should be seen as an extension of each other. 90% of your work is done if you can get both their stories on the table so to speak. The rest is allowing the negotiation to emerge out of this human foundation.

    There are a number of commercial mediators and lawyers who can work at the human level and are comfortable with working in joint sessions. But I fear it will take a couple of generations for the profession more broadly to wean off the centuries-old, dehumanised approach to dispute resolution.

    I see some resonance with Max Planck’s suggestion that science progresses through the funerals of the previous generation of scientists. His full quote was:

    ‘A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die and a new generation grows up that is familiar with it’.

  3. Interesting post, Charlie.

    While there’s no question that opening statements are often a lost opportunity, I feel their true impact and value is often not fully appreciated until long after the mediation has concluded. So I would be careful about concluding whether the strategy of an opening statement can be assessed or measured on the day of a mediation.

    “I could never have settled without that opportunity to have had my say.” Referring to his opening statement, these words came from an injured employee a year or two after the mediation. With that amount of distance he was able to articulate that this sense of closure was as important to a settlement as the financial terms being discussed. And this opportunity to speak his mind probably never would have come in the court case that had been pending at the time.

    While the above example was personal injury, I’ve heard similar words many times from business colleagues following a commercial mediation, either about the impact of having been able to speak their mind to the other side, or the impact of hearing what the other side had to say.

    As a result, I cringe when I hear from (some) mediators that they no longer hold, or actively discourage joint sessions at the beginning of a mediation because opening statements are just “lawyers pontificating”. This strikes me as a baby/bathwater solution, and one that tends to privilege the role of the lawyers and the mediator over that of parties themselves.

    As an in-house counsel, I usually asked the business people to make or at least participate in the opening statement. This had a further impact in ensuring that they were fully engaged in the process. And when one side does this, it will often draw the other side’s business leaders to reciprocate, instead of letting the lawyers speak for them. As a lawyer, it requires sacrificing the opportunity to engage in the performance theater of litigation (the ability to pontificate) but with a healthy return in party investment.

    1. Thanks Michael. I quite agree that what’s said at the start of a mediation is important. It’s the use of the term “opening statement” that worries me. Mediators can help lawyers avoid pontificating by the invitation they make, and the replies to this post suggest people are using a good range of alternatives.

  4. Very thought provoking Charlie, many thanks, not least for those of us teaching Mediation who have to address many aspects of practice with a sense of generality. Maybe more nuanced approaches need to be discussed and form added to the list of the mediator’s preparatory thinking.

    I’ve just come from a webinar where the speaker praised the usefulness of venting (by the parties!), and while it may well be accusatory, reheating past grievances and so on, may it also be a necessary step, however we frame it or curate it?

    1. Nuanced approaches sound good to me! To be clear – I’m NOT trying to rule out people speaking at the start. It can be essential for difficult things to be said (and heard). Just wanted to draw attention to the baggage carried by the term opening statement, particularly if it’s delivered by lawyers.

  5. I find that a useful way to address the concerns you raise, Charlie, is to encourage the clients / key decision-makers to meet with me privately before we gather more formally. At that meeting, usually just sitting together without tables, I invite the clients to talk to each other about how they see things/what it’s all about/what they’d like to tell the other to help understanding/why we’re all here. I say quite specifically that this is not about negotiating an outcome. These meetings are generally amicable and constructive and inevitably influence the following meetings and how parties then choose to explore the issues if we come together in a full session. Even then, rather than having both parties speak, I invite the “claiming” party to set out its stall, as it were, and then encourage the “responding” party to take time to reflect before taking the opportunity to offer its views. That all tends to us away from the “opening statement” paradigm.

    1. Thanks John. Those initial meetings sound like a great idea – I heard a rumour that croissants were involved! It’s all setting the scene for a collaborative problem-solving conversation.

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