In Georgia, the law requires that parties involved in Magistrate Court actions discuss their cases before adjudication. Depending on the county, this ‘discussion’ may take place between unattended parties in the hall outside of the courtroom or through formal mediation. In Northwest Georgia, a client’s opening statement can be a long and winding road. Northwest Georgia was settled by folks from the story-telling, Scot-Celt culture, and story telling remains a respected part of the culture. For example, the country lane one of us lives on is named for a locally famous ‘liar,’ a story- teller who never wore shoes and rarely bathed but who routinely entertained local folk with very tall tales, stories that are remembered to this day.
It was while discussing the challenges unique to mediation in folk cultures that Jerry Wood suggested we work with parties involved in mediation to shorten their opening statements. Our hope was to remove some of the switchbacks from that road. We were also attempting to address a number of other issues. For example, in our part of the Deep South almost any words can be fightn’ words. But when those words go on and on and on, the mediation can setup subsequent conflict while failing to resolve the issue(s) at hand. Unfortunately, this area also remains ‘educationally challenged,’ with relatively low rates of literacy.
The idea that developed out of our conversation was based on the need to put the mediator in the picture as rapidly and clearly as possible. Our formula for remaining sensitive to the cultural and demographic concerns, while ‘getting on with it,’ turns out to be relatively simple. After the ‘How-dee-dos’ we explain the elements of mediation. We tell the participants that, if we are going to help them, they have to make sure that we know as quickly as possible the elements of their dispute, they need to ‘put us in the picture.’ We then ask them to take a few moments to think about what they might tell us in about two minutes. We make sure they know they will have whatever time required to fully explore their concerns, later in the mediation, should that be necessary.
An immediate benefit of this approach is that the party going second rarely has time to get angry and is not locked into merely responding to the first party’s opening. This approach allows the mediator to level the table and get both parties equally involved in the process before one or both tune out completely. Each party has also has a short original story as a beginning point for the mediation. The equally brief and precise recasting by the mediator proves to the parties that they are being heard and teaches each party something about the importance of listening. Short opening statements require a reduction in colorful rhetoric, thus laundering the language and setting the tone for ensuing discussions.
The brief opening statement helps reveal where the parties are in terms of dealing with a resolution. If one or both parties are still analyzing the situation, the mediator would not begin with bargaining techniques. If, on the other hand, the parties are seeking closure, the mediator can focus on the elements of closure. We have also found that, in many cases, it is advisable to break immediately from the abbreviated opening into caucus with the individual parties. Because of the tight focus of the opening statements, the caucus often encourages the parties to think about what they really want to gain from the mediation.
The ‘two-minute’ opening statement from the participants has worked very well on a substantial number of mediations that we have facilitated over the past year. Not only does this approach help the participant focus on the essence of his or her concern, it minimizes the assignment of guilt, and reduces the irritation to the party speaking second. Quite often, we will pick up hints or outright clues for the direction of the remainder of the mediation. We have found that a larger number of the cases mediated in this manner resolve in a shorter time than when allowing the participants to use longer openings.
Finally, The two-minute opening also keeps us from getting so ‘danged’ bored during those long, windy, Deep South story-telling sessions.
From the Blog of Phyllis G. Pollack.On August 19, 2010, the Second Appellate District of the California Court of Appeal issued an opinion in which it upheld mediation confidentiality. In...By Phyllis Pollack