October 2012
Mediation Opening Statements - A Dress Rehearsal and a Strategic Opportunity
October 24, 2012
In my view, the opening statement is imperative to a successful mediation. It presents the attorneys with, what is likely, their only opportunity to address the opposing party directly and unfiltered. It forces the opposing side to listen to a different version of the case to which they’ve long become accustomed. No longer is their case fully immune from a contrary and sometimes eye opening assessment or theory. Instead, the very foundation on which the case relies will be picked and prodded, poked and ridiculed. That which was thought to be unassailable and categorical will now be subject to critical questioning.
Usually, the sheltered party doesn't want to hear their case is as holy as a baker's dozen of hot crispy creams on a Sunday morning. After all, their attorney has been telling them for years that their case is a sure fire winner and a no lose proposition. So be it for objective evaluations. It's far better for litigants to know before the trial whether their case can withstand an iceberg or whether it will be sunk by an adverse verdict.
There are occasions when attorneys ask to forego openings. Their reasons are varied. There might be bad blood between the parties (former spouses or business partners) or behavior that might get out hand should the parties even sit in the same room - imagine what it would be like in a courtroom for two weeks. The attorneys might be impatient and just want to get immediately into the negotiations or the parties might not have the financial wherewithal to pay for the "fluff" of an opening statement. They may even argue that the parties have engaged in prolonged and substantive discovery and that they and their clients are intimately familiar with the other one's positions and theories and there is nothing more to know or learn. The excuses are limited only by the imagination and can go on and on. Some are valid, but most of the time I cringe when I hear them.
Opening statements present attorneys with an opportunity to strut their stuff while proudly fanning their plumage in all its glory. What better time is there for an attorney to “show off” to their client without much risk? The opening will reassure the client that their attorney has "the right stuff" and is not afraid to be direct and, if necessary, confrontational. It will telegraph to the opponent that should the case not settle, they'll be in for an adventure at the trial.
In my experience, the mediation opening statement is less formal than the one that will be presented to the jury. During the mediation, like at trial, some counsel will refrain from showing all their cards. They will want to keep an ace up their sleeve and pull it out at the most inconvenient time for their opposition. However, you can safely bet that more than 90% of the mediation opening statement will be replayed in court should the case not settle.
In my view, counsel should play their strongest hand during the opening statement. If an attorney has devastating information against their opponent, they should include it in the statement. Why hold back, if it can force a settlement? There are, of course, reasons to keep some information close to the vest and use it only during the trial. This is especially true if the opposing party would have time to neutralize the “harmful” evidence.
In 2011, just 1 case in 400 went before a jury in the Civil Division of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. Since the odds vastly favor settlement, it makes sense that harmful information might hasten a resolution. If possible, the attorney should administer a metaphorical coup d'grace at the mediation, otherwise there will just be more costs, expenses, and uncertainty for the client. If there is a chance, get the case over - pun intended (caseover.com).
Yes and No
There are instances when one party is eager to make an opening statement and the other declines. Under those circumstances, I advise the parties that if it is a court ordered mediation, they should attend the opening, but are not required to speak. No one has ever declined my invitation. Besides, it would be discourteous not to attend, and we all know that attorneys and their clients are never discourteous.Surprisingly, every time I’ve done this, the objecting party will opt to make an opening, even an extemporaneous one. It's axiomatic that attorneys, when afforded the chance to rebut their opponent's case, will avail themselves of the opportunity. It’s as predictable as the sun rising in the East and setting in the West.
Who Gets to Speak
Attorneys usually make the opening statements. Most have either written it out in long hand, made notes highlighting their main topics, or prepared PowerPoint presentations. It is rare for an attorney to give an opening without any prior preparation. When it happens, it is noticeable. It’s a rare lawyer who can speak cogently, with purpose and aim, and without rambling if there has not been preparation.
Frequently, parties express a desire not to speak during the opening. At times, it is their lone decision, but sometime their decision is the result of prodding by their counsel. Either way, is fine. I just want them to know that they are a part of the process, and not just the person who approves or disapproves demands and offers.
On those occasions when the parties want to make an opening, it is given after their attorney has spoken. More often than not, they are short, polite, and positive. Sometimes they can be nasty. After all, most defendants don’t like to be sued and take lawsuits personally. Plaintiffs, on the other hand, sometimes feel like they've been wronged.
The party openings range from the hopeful and amicable, "I hope we can get this case resolved today," to the cathartic and rude, "You are despicable...." Out of those approaches, I prefer the former.
From there, the opening is much like any opening you’d expect to see at a trial. Only it is shorter, less formal, and it is directed to the other party rather than to a judge or jury. It is the time for counsel to shine.
Openings are Closed
Infrequently, a plaintiff’s counsel will ask for a rebuttal. I won’t say, “No.” My thought is that more information given to the opposing side might be enough to move or sway the negotiations. If it sews some doubt into the case that was overlooked and needs to be considered, it might help to resolve the dispute.When the openings are finished, I inform the parties that the opening session is now finished and we break into our various caucus rooms. I typically walk the defendants first to their rooms, taking a moment to explain that I will first spend time with the plaintiff (everything in the justice system starts with the plaintiff), and then work my way back to them and that I appreciate their patience.
Since time tends to move much slower for the party waiting, I suggest they think of weaknesses in the opposing side’s case and write them on the white board. Once this is done, I encourage them to enjoy the view (JAMS’ Miami Office is on the 26th floor of a new Brickell Avenue building. It has a tremendous view of Biscayne Bay, the Atlantic Ocean, South Beach, Government Cut, and Key Biscayne.). We give them high powered binoculars, and their time seems to move a lot quicker.
In Short
Mediation opening statements are an important part of the mediation process. When possible, they should never be waived. The opening statements give attorneys and their clients a chance to show off the best part of their case and demonstrate the weaknesses of the opposing parties case. What could be better?It also affords the attorneys the opportunity to show the other side their adeptness at presenting a cogent statement of the facts/argument to a judge or jury should the case actually go to trial. The benefits of opening statement are significant, and an attorney would do a client well by preparing one as if they were going to trial.
Comments
Hardball
October 04, 2012
By the time an attorney walks into a mediation room, he or she has a pretty good idea of how the opposing counsel will behave during the process. Generally, attorneys who act professionally and get along during the discovery phase of a case will act in the same manner during the mediation. However, the attorney who forces their opponent to fight and beg for every scrap of discovery (even though the request is proper) will likely behave consistently during the mediation.
As a mediator, I have found that it is more important for someone to bring the metaphorical “ball” to the mediation, than it is to worry about the party who wants to play hardball. If a defendant doesn’t bring any money to the table or a plaintiff just wants their day in court regardless of the gold and riches placed at their feet, the case will not settle. This is playing “no-ball,” and short of using a 2x4 (which you cannot do!) these cases are bound for trial, unless there is an epiphany or the money to litigate runs out. It is not uncommon for either of these two events to occur.
It should be no surprise that unreasonable people act unreasonably. However, there are parties who are intentionally unreasonable at the mediation, but who are fully aware of their conduct and use it as a strategy. It’s sometimes difficult to know which is which. Those who have an exterior of granite, but whose insides are like talcum powder, usually do not acknowledge any weaknesses in their case before the mediator, but will do so when alone with their client in the privacy of the caucus room. These types of people use this approach as a means to an end, trying to get the best deal for their client. In due course, time, persistence, and an appeal to their interests will wear down the façade.
Those who have the ability to settle the dispute, yet opt to erect a castle
wall and use their favorite word - “no,” can be a mediator’s most difficult challenge. When both parties have the personal stamina and financial wherewithal to litigate until the cows come home, the mediator is challenged with finding a chink in the party’s armor that will prompt a desire to settle the case.
When the typical monetary uncertainties of jury awards, costs of litigation, and attorney’s fees do not adequately motivate a settlement, the mediator might want to consider “time.” Yes, some litigants, especially those who are well heeled, see their time as more valuable than any potential judgment. Important people (or those who just think they are important) will view their personal time as a nearly priceless commodity. It is the mediator’s job to then juxtapose that amorphous commodity against any possible judgment. This will force the hardball player into balancing the alternatives – money vs. time.
Every time I hear an attorney’s bray, “We are drawing a line in the sand. We won’t [take/offer] a penny [less/more] than $ [fill in the blank].” I giggle to myself and then respond, “You had me worried for a moment. If you said you were drawing a line in marble, I’d be concerned. The best part about sand is that the line is easily erased and a new one can be drawn at another location.” It breaks the tension and usually gets a laugh.
Enticing a stubborn litigant to move from “no” to “yes” can be daunting. Unchanged positions will invariably cause frustration to the party that wants to play ball. It may lead to a predictable, “If that’s their final position, we are walking!” Passing that message on to the hardball player will either be met with a, “Let’em go” or a changed offer. If the latter happens, we’ve got a ballgame.
The mediator must be patient and continue to probe the reasons for a hardball player’s recalcitrance. Questioning the reasons for their position may very well bring to light some undetected or ignored risk that will cause the disputant to re-evaluate the case. The goal is to get the parties to play ball, even if it is hardball.
Ultimately, it’s the mediator’s job to let the hardball player know that it’s not necessary to hurl fastballs throughout the mediation. Sometimes a nuanced pitch with some strategy behind it can garner far greater rewards.
It should be no surprise that unreasonable people act unreasonably. However, there are parties who are intentionally unreasonable at the mediation, but who are fully aware of their conduct and use it as a strategy. It’s sometimes difficult to know which is which. Those who have an exterior of granite, but whose insides are like talcum powder, usually do not acknowledge any weaknesses in their case before the mediator, but will do so when alone with their client in the privacy of the caucus room. These types of people use this approach as a means to an end, trying to get the best deal for their client. In due course, time, persistence, and an appeal to their interests will wear down the façade.
Those who have the ability to settle the dispute, yet opt to erect a castle
When the typical monetary uncertainties of jury awards, costs of litigation, and attorney’s fees do not adequately motivate a settlement, the mediator might want to consider “time.” Yes, some litigants, especially those who are well heeled, see their time as more valuable than any potential judgment. Important people (or those who just think they are important) will view their personal time as a nearly priceless commodity. It is the mediator’s job to then juxtapose that amorphous commodity against any possible judgment. This will force the hardball player into balancing the alternatives – money vs. time.
Every time I hear an attorney’s bray, “We are drawing a line in the sand. We won’t [take/offer] a penny [less/more] than $ [fill in the blank].” I giggle to myself and then respond, “You had me worried for a moment. If you said you were drawing a line in marble, I’d be concerned. The best part about sand is that the line is easily erased and a new one can be drawn at another location.” It breaks the tension and usually gets a laugh.
Enticing a stubborn litigant to move from “no” to “yes” can be daunting. Unchanged positions will invariably cause frustration to the party that wants to play ball. It may lead to a predictable, “If that’s their final position, we are walking!” Passing that message on to the hardball player will either be met with a, “Let’em go” or a changed offer. If the latter happens, we’ve got a ballgame.
The mediator must be patient and continue to probe the reasons for a hardball player’s recalcitrance. Questioning the reasons for their position may very well bring to light some undetected or ignored risk that will cause the disputant to re-evaluate the case. The goal is to get the parties to play ball, even if it is hardball.
Ultimately, it’s the mediator’s job to let the hardball player know that it’s not necessary to hurl fastballs throughout the mediation. Sometimes a nuanced pitch with some strategy behind it can garner far greater rewards.