Mediation of civil disputes is as popular as ever. In Common Pleas Courts throughout Ohio, including Cuyahoga County, the vast majority of civil mediations begin with an opening joint session: parties, counsel, adjusters, and the mediator sitting together in the same room. As such, you may wonder how to make the most of the opening joint session. How much should you say? What tone should you set? Should your client speak? What will the other side say? Undoubtedly these and other questions will cross your mind. The purpose of this article is to help you make the most of the opening joint session. Disputes are not resolved based solely on opening statements, but an effective joint session does set the stage for productive negotiations and ultimately for resolution.
Greetings and Salutations
The first purpose of a joint session is to greet the other side: to put faces with names. At a minimum, counsel and the parties should introduce themselves to the other side with a sincere and cordial hello. First impressions matter, and I am always amazed when a mediation participant tells me hours into the mediation how offended they are that the other lawyer didn’t even bother to say hello. There are enough barriers to settlement in mediation, so why create another by ignoring the basic courtesy of greeting the other side? Exchanging pleasantries about the weather, sports, or traffic begins to establish a rapport that can set the stage for later negotiations. Astute negotiators recognize that the parties are bound together in this litigation, and to reach resolution and craft a settlement, they will need to work together.
The Mediator’s Opening
Most mediations begin with the mediator addressing housekeeping matters, introducing their mediation process, and discussing confidentiality and privilege. A mediator’s opening remarks vary in style and duration, but they all have one thing in common: it’s the mediator who does the initial talking. While this gives you and your client some time to gather your thoughts, it would be a mistake not to listen to the mediator. Besides learning important details like where the bathrooms are located, listening to the mediator gives insight into that mediator’s style and preferences. What tone are they setting? Do they project confidence and optimism? Are they managing expectations? Are they clear about confidentiality? When will we caucus? Listening to the mediator’s opening remarks provides useful information that can help counsel decide how to effectively use the mediator later when the negotiations hit the inevitable rough patches.
Counsel should also encourage their clients to listen to the mediator. This gives your client a chance to learn about the mediator and their mediation process. This also gives the mediator a chance to establish a rapport and to build trust with your client. If you have accurately described mediation to your client, then the mediator’s opening remarks also reinforce your client’s confidence in you and your settlement recommendations. It can also be useful to refer back to the mediator’s opening remarks later in the process if a client needs reminding about the purpose of mediation and the importance of compromise.
Counsel’s Opening Remarks
Mediation advocacy is not trial advocacy. Prepare your client in advance so they know the difference. There is no jury or judge to convince in mediation. The goal of an opening session is not to convince the other side that you are right and they are wrong. There is plenty of time later in the process for the mediator to help both sides evaluate strengths and weaknesses and appreciate risk. If your client is still confused about why your mediation advocacy feels different than what they expect at trial, the mediator can help explain the difference.
The opening session is an opportunity to establish a rapport and start to build credibility with the other side. Finding areas of agreement and common facts, identifying areas of disagreement, and even acknowledging some of your own risk goes a long way towards establishing credibility with the other side. That credibility can be invaluable down the road when negotiations inevitably hit an apparent impasse. A scorched-earth opening statement can cause the other side to reactively devalue everything you say after that. On the other hand, a firm but fair opening will lend credibility to arguments you make later in the mediation. You are unlikely to convince the other side with an overly adversarial opening statement, but you do run a very high risk of causing them to become further entrenched. A lawyer’s opening statement should demonstrate that they are prepared and knowledgeable about the case, but also that they acknowledge the costs and risks inherent in trial. Counsel can dial the advocacy up and down as appropriate, but shouldn’t forget the primary purpose of the mediation opening session.
It is also important to identify your audience. Is it the other party? The mediator? Opposing counsel? Your own client? All of the above? Opening statements in mediation provide the rare opportunity to address the other party directly, without the filter of opposing counsel or the mediator. It is a chance to tell them directly that there are alternative points of view, and therefore risk. However, it is not the time for personal attacks. Calling someone a liar will frustrate the mediation process. Any concerns about a client’s credibility should be addressed in private caucus with the mediator. Some of the most effective opening statements simply acknowledge that the parties don’t agree about certain things, while stating that they are here today to compromise and seek common ground.
Your Client’s Opening Remarks
Allowing your client to speak in mediation offers insight into which aspects of their claim are most important to them. Lawyers are very good at articulating legal positions, but the clients themselves are often best at identifying their underlying interests. Further, sometimes clients present new information in their opening remarks. I am always amazed in a personal injury case when a lawyer learns for the first time in mediation that their client has recently gone back for more medical treatment, or that their property damage claim was never resolved. Because so few cases go to trial, mediation is also your client’s opportunity to have their “day in court.” Telling their story, and feeling heard and understood clears the path for resolution. Allowing your client to speak in mediation also gives you the opportunity to asses them as a potential witness. How do they present? Are they articulate? Will they have jury appeal? Do they present differently at mediation than at their deposition? What is their comfort level in the courthouse and what is their risk tolerance?
The Other Side's Opening Remarks
Most mediators ask plaintiff's counsel to speak firs. Others invite the parties to decide who goes first. Whether you speak first, second, or last, you will have the opportunity to listen to the other mediation participants. Listen to opposing counsel. How well do they know their case? Their client? Which facts and legal arguments are they emphasizing? Are they setting the stage for negotiation and compromise, or are they attempting to litigate in their opening statement? As for their client, what kind of witness will they make? Does their appearance match their demeanor at deposition? Do they emphasize the same points as their counsel? If not, what aspects of the case seem important to them? Above all else, listening to others in the joint session is an opportunity to learn invaluable information to help you advise your client about settlement later in the mediation process.
Cases are not won or lost in the opening joint session. Instead, an effective joint session sets the table for productive negotiation, and often reveals invaluable information to those who listen. While it is important to prepare your opening remarks, astute readers will notice that a majority of the topics above involve listening, not talking. There is an old saying that is often repeated in mediator circles that we humans have two ears and only one mouth for a reason. Counsel and their clients become so focused on what they are going to say at mediation that they often forget to listen. Remember, the goal of the opening session is not to convince the other side, but rather to establish a rapport and start to build credibility that you can use later in the process. Being respectful and listening with the goal of learning something new about the case will lead to more productive mediations and better results for your client.
Matt Mennes is the civil mediator for Cuyahoga County Common Pleas Court. He has been a CMBA member since 2015. Matt may be reached at cpmxm@cuyahogacounty. us or (216) 443-8504.