Eight years ago I penned an article entitled “Preparing for Mediation”. What I said then still holds true but I am not going to waste column inches on this article by repeating what I said in 2006. If you want to read the original article then simply visit vinden.co.uk and look down the titles listed in my blog for the article in question. It is an easy read and, if I say so myself, a useful overview and summary of how to prepare successfully for mediation.
They say that you can’t teach an old dog new tricks but recently I have witnessed, first hand, how a well researched, well planned and delivered opening statement can set the tone of the mediation and have a surprising and even damaging impact on an opponent at the very start of the mediation.
The vast majority of mediations start with the mediator sitting with the parties in a joint session, explaining his or her role, what mediation is all about, the ground rules and so on. Invariably, the mediator will then invite the parties to make an opening statement. 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. How wrong can they be?
It is your job to convince your opponent of the strength of your case, not the Mediator’s. What better opportunity can there be to do this than in the opening statement?
So who should deliver the opening statement?
Yes, I know that you may have one or more expensive solicitors with you and/or counsel present. Even so, it should not automatically fall to the lawyers to deliver the opening statement. Remember it is your dispute, not your lawyers’. What will your opponent expect? What will have the greatest impact on your opponent? The answers to these questions will dictate who should deliver the opening statement.
It goes without saying that the selected person must be willing and able to make the opening. The default position should not be a lawyer. It's your dispute so keep this firmly in your mind. What is best for you and what will be most effective?
How should you deliver your opening?
Resist the urge to "go through the motions" and get your opening out of the way. This is your opportunity to make an impact on your opponents at a key point - at the outset. It never ceases to amaze me how many parties are willing to discard the chance to make that all-important first impression.
Now for some body language tips. Maintaining eye contact with your opponent will convey determination and sincerity. Avoid the temptation to read from a pre-prepared text. Be passionate without resorting to shouting. Your whole body language should convey "we are here to do business but we are no push-overs".
Now it is time to think about content. What should you say in your opening address?
Clearly every mediation is different and careful thought needs to be given to what you are going to say, depending on the individual facts of each case. But here are a few simple guidelines on content to follow.
Simply reading the position statement provided previously is not a good idea. It needs to be original, at least in part.
Refer to key points in your opponent’s position statement to show that you have considered and understand your opponent's case.
Avoid making personal attacks and insulting your opponent. Although you might feel better afterwards, is this really going to help you get a deal done?
Are you at the mediation because you recognise that both parties will incur unavoidable costs if settlement is not achieved? If you believe this, saying so will do you no harm.
Preparing thoroughly for a mediation will improve your chances of getting a settlement immeasurably. Delivering a good opening statement on the day of the mediation is a key part of the preparation process. I might be an old dog, but I am willing to learn new tricks. Are you?