The Disappearing Opening Statement

What is the purpose, essence, and/or function of mediation? One of the many definitions of mediation is the providing or creating an environment in which parties, who are in conflict, may, if they choose (self-determination) establish a new Relationship so that if they choose to resolve their conflict, they can do so. As Einstein said, “the thinking that takes one to the problem is not the thinking that will take you away.” Or, as may be said another way, “if you keep doing what you’re doing, you’ll keep getting what you get.”

            As we are now witnessing in mediations many mediators are going directly to getting the problem solved (or getting settlements). Often times the mediators, in their attempt at problem solving and decision-making, are ill equipped to do one, the other or both. There’s been little or no training in these processes.

            Some traditional mediators see this as a disservice to the parties, by not giving them a heads-up as to what’s about to occur. By going to immediate problem solving without the parties getting the mediation process blueprint may inhibit their full participation. This, in turn, may deny their self-determination (one of the democratic tenets of our society) in the process. The more they’re invited in, the more a resolution BECOMES THEIRS. “That to which they give birth, they will support.”

            To start your automobile, most need a key in the ignition; to light a room, a switch is engaged; and, so on and so forth. So, too, a good start to mediation is the Opening Statement.

            Please humor me by engaging your imagination. Imagine you’ve taken a battery of medical tests and you’re going to see your doctor for the assessment and recommendations:

Doctor #1: Mary, we need to operate. Be at the hospital first thing in the morning and we’ll perform surgery. That’s all!

Doctor #2: Mary, we’ve run the diagnostics taken x-rays and all show us exactly where the problem is and we know just how to fix it. This is what you need to do. Nothing to eat or drink after midnight. Be at the hospital by 6 AM. Be sure to bring your driver’s license or ID. I’ve sent your insurance information over already.
If you park in the Orange Parking Lot, you’ll see the signs to direct you to the Outpatient Surgery Center. Go in through that entrance and you’ll see the reception desk. Check in there; they’ll be expecting you. Get ready; they are the first ones of many who will ask you your name and date of birth! You’ll be directed to the elevators to get to the Third Floor. An assistant will greet you. They will also direct your family to a comfortable waiting area. They’ll get you to a surgery prep room where they’ll give you a gown to put on. They’ll do all the usual things: take your vital signs; start an IV; and, make sure you’re ready once I’m ready for you. While you’re waiting, a couple of your family members can stay with you. The assistant will let them know.
   When I’m ready, they’ll administer a mild sedative, just enough to relax you, and will wheel you to the surgery area. I’ll see you there and we’ll get started.
Once the surgery is over, you’ll be taken to the recovery room. You may be a little cold. Not to worry, they’ll put as many warm blankets on you as you need to warm you up. Once your vital sign are stabilized and you’re fully awake, they’ll return you to a room. We’ll monitor your vitals and pain level to keep ahead of that. Once you are fully aware, I’ll be by and we’ll talk about the surgery and what will need to happen from that point.

   So what’s the purpose of the Opening Statement? It can include a mere “Hello” only (I observed this once) or it can include:

• Introductions
• Explanation of the Mediation Process
• Mediator’s Roles
• Entitlements/Rights/Assurances
• Other – lots of …

For those who attend mediations regularly and don’t desire to hear an opening statement, they can absent themselves during this time or, if it’s a different mediator, or even the same, they may hear something new or hear what is said as reinforcement of what they have previously heard.

The opening statement, among other purposes, sets the stage and may provide comfort for those new to the process allowing them to re-center themselves.

A mediator without an opening statement is like jumping in the empty driver’s seat of a moving auto, capturing the baton in a relay race for the very first time, or grabbing a bullet as the gun fires! (Ouch!)

Knowing what happens often relieves anxiety, potentially sets the stage for the establishment of a NEW ENVIRONMENT and, most importantly, sets the groundwork for the formation of a new relationship, giving rise to NEW THINKING. New thinking can potentially give birth to a do-able and durable resolution.

Many mediators rush to solving the problem or resolving the conflict. May I suggest a good opening statement begins to set the stage for good discussions, competent decision-making and effective problem solving (resolutions)?

Starting from the beginning often invites a good ending.

                       

Bob Berlin

Robert A. "Bob" Berlin, J.D.    President, The New Decision Management Associates, Inc. has primary responsibility for Mediation, Negotiation, and Alternative Dispute Resolution Services. Bob has experience in handling ADR cases numbering in excess of 4000 civil and family law mediations since 1968. As a registered arbitrator, mediator and neutral evaluator… MORE >