MEDIATION TIP #4 – DON’T SELL THE OPENING STATEMENT SHORT
April 30, 2014 by Glenn Loewenthal
As we move through our mediation tips from pre-mediation all the way to the final resolution, the next stage I want to address is the opening statement. I wholeheartedly believe that the opening statement is the most undervalued part of the mediation. After all, the opening statement is the first time, and sometimes the only time, that everyone is in the room together. Take advantage of this great opportunity to set the stage for the entire mediation day.
Let’s start with the Plaintiff side since they usually go first. Too many Plaintiffs’ lawyers are in too much of a hurry to get the mediation started, and they come in and rush through the opening, sometimes only saying a few words. How many times have you said or heard this or something like this? “I won’t waste everyone’s time going through the facts. We’re here to mediate in good faith and we hope to be able to resolve the case.” Take my advice; don’t do this, or you will be wasting everyone’s time. How you present your opening reflects on how you will present your opening to a jury. Be well prepared. Have meticulous notes, exhibits and damages charts to hand out. If you look unprepared in your opening, the defense side will assume you will be unprepared for trial. A good but short power point presentation is very effective. But don’t do a power point presentation unless it is also well prepared. If it is nothing more than bullet points, don’t bother. Mix in photos, clips of depositions, interrogatory or admissions answers. Show the other side you are prepared. The other big mistake I see most often from Plaintiffs’ lawyers is that they don’t let their clients speak. I hear attorneys all the time say they are afraid that their clients will say something stupid, or make a bad impression. Don’t worry. Let them speak! If you have read the great mediation book by John Miles, you know that one of the chief motivators in settlements is that the clients want to be heard. They sometimes just need someone other than their own lawyer to hear their story. The mediation is probably the only chance they will have to talk directly to the adjuster, the mediator and opposing counsel in a non-formal setting. Don’t be scared by what they might say. When clients speak from their heart about how their lives have been affected, they are usually very effective and eloquent. Just the fact that they get to say their peace and be heard can sometimes be the difference in a case getting settled.
For the defense side, the advice is almost the same. Most of the time, the defense attorney says very little and keep to themselves what they perceive as key evidence that can be used later. However, it is much easier to set the expectations of the mediation at the outset than to change in the middle of the sessions by adding bits and pieces of evidence and information. The earlier that the Plaintiff can start processing the weaknesses of their own case and the strength of the defense, the better the chance for a resolution. Just as with the Plaintiff’s opening, the defense lawyer should appear prepared, well versed in all the facts of the case, and should thoroughly cover all aspects of the defense in the opening. Exhibits and other handouts are very effective. Finally, if the adjuster is present, and also if the defendant or a company representative is present, they should take a minute to speak directly to the plaintiff(s). A short statement telling them you are sorry for what they have been through, that you appreciate them being there, and that you are there to help them resolve their case, can do immeasurable good for the prospects of settling the case.
The bottom line: take advantage of the opening session. Set the tone. Be prepared. Let everyone speak. It will pay off in the end with more resolutions.