Most trial lawyers think the art of persuasion is their most important job skill. This being so, it is surprising how often seasoned lawyers pass up the chance to give a potent mediation opening statement aimed at persuading the other side's decision makers to settle on favorable terms.
The opening statement is an unparalleled chance to persuade the adversary of the strengths of your case and the weaknesses of his or her own. Also, the client, executive or adjuster on the other side of the table may never have heard the case presented with detailed directness, not filtered by the caveats of his own counsel. During opening statement, counsel has these people's undivided attention and a valuable opportunity to give the opposition an unfiltered, compelling view of the case and the reasons to settle.
The mediator, too, will have the chance to sharpen his or her understanding of the case and enhance his or her ability to advocate the presenter's point of view in private caucus.
Many lawyers rely on the mediator to advance the strong points of their cases and state the weaknesses of the opposing case. But the mediator can't do this effectively. The mediator lacks the lawyer's knowledge of the case. The mediator also may lack the lawyer's ability to logically and eloquently articulate the key elements of the case. Further, the mediator doesn't have a real opportunity to make an organized, orchestrated presentation. And, the mediator's obligation to be neutral constrains his or her ability to forcefully advocate one side's case.
The best alternative to settlement should be highlighted during the mediation. Usually, that alternative is litigation. The opening statement can help move the case toward settlement by reminding the parties that, whatever warts the settlement may have, the alternative is worse.
The reaction to a good opening statement is an excellent gauge of probable jury response to a case. S. Hanlin's book, "What Makes Jurors Listen," states that a University of Chicago study found that most jurors make up their minds during or just after opening statement and rarely change them during trial. A wise participant at mediation will listen to the opposition's opening statement with a juror's ear and consider how jurors might react to the case.
As a courtesy, let the mediator and your opponent know that you plan to give a meaningful opening statement so that they aren't caught by surprise. Ambush is OK at trial but may be counterproductive when the ultimate object is conciliation. Other elements that make for an effective mediation opening statement include:
The tone should differ from an opening statement in a jury trial. Presentations must be tailored to the audience. At trial, the object may include making the jury angry at the opponent. But enraging the opposing decision maker is a bad way to start a settlement negotiation. In mediation, the object is to rationally and sympathetically persuade the opponent, not to enrage him or her. The trick is to present the case and basis for settlement compellingly without being needlessly incendiary. It may help to offer conciliatory remarks that don't undercut one's position, such as an appropriately phrased apology or expression of sympathy. Examples include: "I know there are two sides to every story," "We appreciate your willingness to come and attempt to negotiate a businesslike resolution of this dispute," and "We see that the plaintiff has suffered a serious injury, and in no way belittle or detract from that."
- Issues addressed. The opening can and should address issues normally outside the relevant scope at trial, such as litigation costs, attorney fees, insolvency and the relationship between the parties. Very often these nonlegal issues provide the most powerful reasons to settle.
- Form. Like an opening statement in court, the mediation opening should set out a compelling story or narrative. And here, as in other settings, a picture is worth a thousand words. Visual aids frequently convey information more efficiently, accurately, clearly and compellingly than oratory. Highlighted clips from key documents, deposition testimony, photographs, charts and summaries can help.
- Briefs. Many of the points urged above also apply to mediation briefs. They should be exchanged, although sensitive material or "smoking guns" can be revealed in a separate communication for the mediator's eyes only. They should be prepared with the audience - the opposition - in mind, drafted to persuade the opponent to settle, not just to show that one has a strong legal case.
Hon. Richard C. Neal (Ret.) is a mediator and arbitrator with JAMS in Los Angeles and a retired justice on the California Court of Appeal.
Copyright 2002 Daily Journal Corp. Reprinted with permission.