“I’ve explained it all to my client. We can dispense with your opening statement and get down to business.”
Every mediator on occasion has heard this first-shot-out-of-the-cannon remark. The speaker, an attorney, has been through so many of these proceedings that he or she has become jaded to the process. Sometimes, the attorney believes the opening comments by the mediator are calculated merely to “run up the tab.”
Too often forgotten are the clients, who in most cases have no idea what is about to happen. Adjusters frequently have been exposed to the process, but just as frequently they have not.
The opening statement accomplishes many things:
It establishes the purpose of the gathering—why everyone is there; It sets forth the procedures and ground rules; It explains the role of the mediator (too often misunderstood by lay people, and occasionally attorneys, to be that of a judge or arbitrator); and It carries out the mediator’s legal obligation to inform the parties and their counsel that the mediator is neutral, impartial, not the decision- maker, and that the process is, even when court ordered, always consensual. The opening statement also allows the mediator to say something about himself or herself, in order to gain the acceptance, confidence and respect of the parties and their counsel. (Much the same, by the way, can be said of the attorneys’ opening statements, in which they offer their respective interpretations of the facts and the law involved.) While the attorneys normally are aware of the confidentiality of a court ordered proceeding or of one enjoying the cloak of a confidentiality agreement, the parties usually do not understand the consequences, and they are the only ones having first hand knowledge of the facts.
Depending on the circumstances or whether the parties already were involved in close, amicable negotiations prior to the mediation, I have truncated the opening statement. That is a matter of judgment, only for the mediator. It is essential, however, to relate, at least briefly, those items required by the Rules.
So, counselor, do not be impatient with the process. Human nature being what it is, a well laid foundation often will best support the construction of a final settlement.
James Coben gives an example of a lack of transparency and honesty when a mediator tells parties that the mediation is totally confidential.By James Coben