Never Waive Your Opening Statement at Mediation 

Your opening statement at mediation is like the first dance at a fabulous event or affair. You don’t want to take the wrong step because you know everyone’s watching. 

The opening statement is a unique opportunity to engage the other party and present them with facts they may not be aware of. It is your opportunity to communicate the merits of your case, as counsel, and convince the individuals sitting across from you to take your position seriously. When you fail to do this it speaks volumes about your case without stating a single word. 

Basically, you are communicating to everyone ,including the Mediator, that you do not value your case, and if you do, you are not willing to take the time necessary to prepare for it. Instantly, you let your adversary know that should this matter not settle in mediation you will be no threat at trial. An opening statement is also the perfect chance to showcase the strength of your case before your very own client. 

The purpose of an opening statement is not just to impress your client, the opposing counsel or their client. It is about educating the parties involved. You are not only educating the other side, but the Mediator as well. This is especially true if you have not prepared a mediation summary. A mediation summary is not essential for the skilled mediator, however, it will save time and saving time at a mediation means saving money. While an effective mediator is a master at neutrality, a mediator can be your greatest arsenal and/or weapon. You must, however, give that mediator the ammunition necessary to assist in drilling home why a settlement may be the best option for all involved. A Mediator, no matter how talented or effective, must be provided with the essential facts and the applicable law which supports or refutes a claim – if you truly expect to settle a case at mediation. A mediation which is scheduled prematurely (before any discovery is done in a case) is the cause for many impasses. Likewise, I have noticed an unwillingness of a party to settle a case, for even nuisance value, without a party establishing

liability and damages sustained as a result of the claims raised. 

In summary, the value of an opening statement is priceless. It does, at the very minimum, the following: 1) educates the Mediator as well as the opposing party; 2) let’s your opponent know that you are well-prepared, and that you take your case very seriously; and 3) provides an opportunity you don’t get in litigation, to talk directly to the Plaintiff or Defendant about the weaknesses of his or her case, and the likelihood that you will prevail at trial. 

A thoughtful opening statement is one way an advocate allows the process to work favorably for the benefit of his or her client. Work the process and it will work for you! Until next time 

I am Valerie Kiffin Lewis, Your Mediator/Arbitrator


Neutral * Mediator * Arbitrator

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