While an overview of a mediator’s opening statement is covered in training, there are some differences in a classroom setting and what is effective in an actual mediation. In my experience, I have tried different ways and have incorporated those that have worked.
Why should a Mediator Make an Opening Statement?
Asking how many of the participants have been involved in a mediation before is a good opening question. The answer is probably not too many. The opening statement is your opportunity to reduce anxieties and address any concerns about mediation before the session begins. An excellent follow up to that question is to explain the process and your role in the process.
What is an Opening Statement?
The importance and impact of a mediator’s opening statement is key. It is an opportunity for the mediator to accomplish several objectives: establish their presence in the room, their credibility, and communicate their role as the advocate and enforcer of the process. Helping clients to understand the mediation process will create a more relaxed and therefore productive environment.
How should the Opening Statement be Communicated?
While the most experienced mediators will admit to a nervousness caused by not knowing what to expect before each mediation begins, the opening statement is a chance to harness that anxiety into positive energy. A mediator can project a confident, positive, professional demeanor with a smooth, well articulated, opening statement. If you get something out of order or not articulated the way you wanted, no one is the wiser.
What should the Opening Statement Contain?
Beginning with small talk can help the participants ease into the mediation. Even before discussing the process of mediation and ground rules, since you, as the mediator, will learn something about them, it is only fair they know a little about you. Providing some background on yourself can help establish rapport with the clients which may reduce some of the client’s anxiety.
This rapport provides a segue into what a mediator does. If you lead with what a mediator does not do, for example, impose their bias, make rulings, or provide legal advice, it could elicit a client’s response of “Well, what are you good for?”.
Point out that the mediator is not an advocate for either side; the mediator is an advocate for the process. Pointing out that their attorneys are their advocates as well as supporters of the process helps affirm to the attorneys that everyone is there in attempt to settle.
Another effective tactic is to get the parties to begin thinking about negotiating. This can be done by asking if they are willing to commit to accepting something less than their initial offer . A good example is to begin with $100 and commit to accept $99.
An effective way of establishing presence in the room is the discussion of each client’s opening statement. Stressing at the beginning that each side will have uninterrupted time, then enforcing that rule, ensures the mediator will be in control of the process. Does each side have paper and pen? Any rule the mediator discusses in the opening statement needs to be enforced to maintain One topic covered in mediator training is ensuring the parties are there in ‘good faith’. I never knew that ‘good faith’ was such a subjective term. I do not ask if clients are there in good faith. I do not even bring up the subject. It has been my experience those who state they are there in good faith are usually not. A good parallel example is the best steakhouse in town. They do not have to put a sign in front stating they have ‘the best steaks in town – they just do.
Confirming the clients who can sign off on an agreement are present at the beginning can save time and frustration. There can be an article on this topic alone. In concluding your opening statement, remember to ask open-ended questions of the clients to address any concerns.
Note I did not address caucuses or confidentiality. I have found those topics to follow the standard mediator training.
Summary
The mediator’s opening statement is the opportunity to establish themself as a caretaker and advocate of the mediation process, establish the ground rules that will help keep the mediation moving forward, and create an identity for the mediator in the eyes of the clients. Taking full advantage of this opportunity can help the mediation get off to a good start.
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