You are serving as lead counsel in a big case set for mediation next week. You have been working on the case for months, conducting written discovery and taking depositions. Now it is time to see if the case can be resolved.
The mediator asks whether the lawyers want to make opening statements in a joint session. What should you do?
There is considerable disagreement over the wisdom or value of having lawyers (or parties) deliver opening remarks during a mediation. Does that approach help achieve a good resolution? Or do those presentations tend to “poison the well” at the outset, making settlement less likely or at least more difficult? Attorneys sometimes tell me that opening statements are not necessary, that they do more harm than good, and that they would prefer to conduct the mediation through private caucuses, with all messages being sent through the mediator.
Here is this mediator’s perspective. Unquestionably, there are things a party could say to the opposing party’s face in a mediation that would be counterproductive. Also, there are situations where a joint exchange between the parties would be inappropriate. Nevertheless, in most instances, I have found that opening remarks, provided they are planned and delivered prudently, can be extremely beneficial. With some exceptions, I encourage counsel to take advantage of this opportunity.
Parties settle cases because they conclude that the proposed deal is better than the likely (or possible) alternatives. What better way to help the other side reach that conclusion than to preview what those alternatives look like? Ask yourself: “Do I trust that opposing counsel has sufficiently advised his or her client about the weaknesses in their case?” If not, this is your chance.
There are additional advantages. When you decide to make a presentation to the other side, you can bet that opposing counsel will not remain silent. So you (and, perhaps more importantly, your client) will see how the other side plans to present its case. Furthermore, by delivering opening remarks in a joint session, you are arming the mediator for his private caucus sessions with the other side. When discussing the challenges that the opposing party faces, the mediator can refer back to the points you made in the joint session. That approach is often more effective than the mediator raising them himself, because it may avoid the other party feeling like the mediator is taking sides right out of the gate. You want the mediator to develop a rapport and trust level with the opposing side early on, because that earned credibility will be needed later in the day when that party needs a reality check.
Opening remarks in mediation, however, should not be approached like an opening statement or closing argument at trial. Save the dramatic Perry Mason routine for the jury, if the case does not settle. Resist the temptation to show your client how you can obliterate the opposing party. Mediation is a different setting. Folks threaten to take someone to court, but I have never heard anyone declare: “I’ll see you in mediation!!” Making the opposing party cry, or inciting a retaliatory attack, will probably not foster compromise.
That is not to say that an opening presentation in mediation cannot be forceful. So then, how best to approach it? Here is a short list of suggested Do’s and Don’ts:
• DO talk about what will happen if the case is not resolved at the mediation. Describe what the other party will face or endure in preparing the case.
• DO preview what the evidence will show and what the legal arguments will be.
• DO predict likely or possible outcomes. Articulate how the other side’s objectives or expectations may not be realistic.
• DO explain why your side’s theories will have common-sense appeal to a judge or jury (or why the other side’s theories will not).
• DO prepare your client that your opening remarks will be different from your presentation at trial, and explain why.
• DO ask your client if there is anything he or she wants you to address in the opening remarks. Consider whether it would be fruitful for your client to speak during the joint session.
• DON’T make personal attacks or value judgments. Focus on the issues and the conduct – not the individuals themselves.
• DON’T bother trying to persuade the other party that they are wrong. You should not expect to change the other party’s mind about what happened or how the issue was handled. Remember, in this setting, it’s really not about right and wrong – it’s all about risks.
All of this requires careful thought and preparation, but I submit that it is worth the effort. Making a respectful presentation that shows a strong command of the case, explains how it will likely unfold, and highlights how the other side’s alternative to settlement is less appealing, can have a powerful effect…without being toxic.
Frank Neuner, managing partner of Spencer Fane’s St. Louis office, is an experienced mediator of workplace conflicts, business-related disputes, and tort claims. He regularly helps parties and their counsel, both in single-plaintiff cases and in class or collective actions, find sensible resolutions to their disputes. He can be reached at [email protected].