The opening session in a mediation can elicit a range of emotions. It is often the first time that the parties interact with each other since the dispute arose. For claimants, the anxiety levels are usually very high and emotions are bubbling very close to the surface. For respondents, or more common in my area of practice, their lawyers and insurers, it’s the opportunity to make clear the substantive issues in dispute and minimise their potential exposure. How lawyers present the opening statement is critical as it not only educates the other party, but sets the tone for the day.
I’ve seen a wide range of opening statements and the most effective ones generally contain these three key features:
- Comments are directed to the opposing party, not their lawyer.
- The parties themselves speak.
- The content is respectful and conciliatory.
Directing comments to the opposing party, not their lawyer
Can you remember the last time that the opposing lawyer said something in their opening statement that convinced you, for the first time, that your client’s was hopeless? Probably not – because it’s probably never happened. By the time a matter gets to mediation the issues in dispute have usually be canvasseed in pleadings, evidence, correspondence and, finally, the position papers.
The more effective focus of your opening statement is on the opposing party directly. It’s important to remember that it is the parties to the dispute that have control over whether the matter resolves at mediation. By directing your comments to them, acknowledging their experience, showing that you have listened to/read their evidence, and explaining when your client has a different perspective, you are doing a few things:
- going some way towards creating a rapport with them; and then
- creating some doubt about the strength of their case; which may lead to
- the beginning of a shift in their perspective from the past to the future.
The parties themselves speak.
Rarely is there a case that does not benefit from, at least the claimant, saying something in the opening session. Often lawyers can feel protective of their clients, wishing to shield them from getting upset or feeling anxious. If the claim involves highly emotional issues, in all likelihood the parties will be anxious and upset irrespective of whether they say anything. Alternatively, lawyers may be concerned that the parties will say something that may weaken their position. While that can happen from time to time, in the vast majority of cases, the opposing party already has formed a view through its independent investigations the likely weaknesses (eg credit issues or underlying drivers).
Prepared properly, if a plaintiff says something themselves, it is more likely to engage them in the mediation process, empower them to make decisions, give them the opportunity to tell their story and be heard and enable them to express emotions that may otherwise cloud their ability to make rational and reasoned decisions.
As the mediator, I will discuss with a plaintiff, privately, whether they have given thought to what they would like to say and offer to work with them and their lawyers to prepare. I have seen very timid and reluctant plaintiffs participate in openings in many ways, for example, by reading out statements, relying on me or their lawyers to prompt them on certain topics if they forget to mention something, a quasi “fireside chat” between the plaintiff and counsel in the presence of all parties and relying on me to summarise for them or bring them back on track if their emotions get too much.
I’ve lost track of the amount of times that a plaintiff has said to me afterwards that they were glad that they had “said their piece”.
Being respectful and conciliatory
In an earlier blog on the role of psychology is dispute resolution I discussed why it is unlikely, that a full blown adversarial attack on why the other side’s case is doomed to fail, will be effective in achieving resolution. In fact, I’ve seen some opening statements that are so inflammatory that the impact was such that previous offers were withdrawn. I have also seen counsel, undoubtedly driven by good motivates, get so carried away describing the impact of the incident on their client that they were oblivious to the additional trauma that it was causing their client and the mediation was postponed because the client was too emotionally fragile to give proper instructions.
It’s important to remember that the purpose of mediating is to attempt to achieve a resolution of the dispute, it is not a trial run of the final hearing. It undoubtedly will require some concessions from both parties – and rarely will concessions be made by someone at the receiving end of a lecture about inexcusable behaviour, errors in legal analysis, insults or humiliation.
There is nothing wrong with presenting your client’s position with strength, however do it in a way that won’t be taken as a personal attack. No one likes to be told, categorically, that they are wrong, or to be humiliated (particularly in front of their client or a significant other).
Effective openings often acknowledge the impact the incident has had on the other party, acknowledge the strengths of both cases, state that they feel confident that a Court will rely upon certain parts of the law or evidence to find their position more persuasive and conclude with a commitment to attempting to achieve a resolution of the matter at the mediation.
A tale from from the trenches
One of the most effective openings I have seen was in a medical negligence case, that involved a tragic injury but with significant causation issues. The plaintiff’s counsel referred the lawyers to the written position paper and then invited the plaintiff to provide an overview of the incident and the impact it had had. This had the effect of engaging the plaintiff in the process, enabling the defendant insurer to see how the plaintiff would present as a witness, and provided a forum for the plaintiff to feel heard. The defendant’s counsel then briefly summarised back to the plaintiff the key things that were said (ie validating the plaintiff and letting the plaintiff know that they had “been heard”) and acknowledged the significant impact that the incident had upon then.
The counsel then said something along the lines of, “by saying what I am about to say, in no way am I detracting from your experience, however I have advised my client, and my client agrees, that it is equally likely that a Court will apply the law in a way that means that my client won’t be found legally responsible. My view, is that a Court will look at the evidence of X and be persuaded that while Y did/didn’t happen, unfortunately that did not change the outcome for you, because ABC.”
Expressed in this way, the defendant’s counsel removed the preconceived notion that the defendant (and its insurer) didn’t understand the claim being made against it, didn’t believe, or care about the plaintiff, avoided antagonising/belittling the plaintiff and enabled the plaintiff to understand the dispute from another perspective.
The matter resolved, but significantly, the plaintiff reported to me that they “felt that they had been heard, had had “their day in court”, felt like a weight was off their shoulders, and were happy accept a compromised result so that they could start focusing on their future.
Just as no lawyer can guarantee the final judgment in a case, there is no formula for the opening statement that will guarantee that the matter will settle at mediation. But, an effective opening, with these three key features, can go along way towards creating the best environment for resolution to be achieved.
In my next blog I will be outlining three key things to avoid in your opening statement. In the meantime, if you would like to discuss the skills and approach I bring to a mediation, please contact me on 0421 048 456 or by email – jsomerville@r3resolutions.com.au.