Page 40 - JulAug2019_BarJournal

FEATURE ADR

GREETINGS &

SALUTATIONS

MAKING THE MOST OF THE OPENING SESSION

BY MATT MENNES

ediation of civil disputes is as reach resolution and craft a settlement, they remarks later in the process if a client needs
popular as ever. In Common will need to work together. reminding about the purpose of mediation
Pleas Courts throughout and the importance of compromise.
Ohio, including Cuyahoga The Mediator’s Opening
MCounty, the vast majority of Most mediations begin with the mediator Counsel’s Opening Remarks
civil mediations begin with an opening joint addressing housekeeping matters, Mediation advocacy is not trial advocacy.
session: parties, counsel, adjusters, and the introducing their mediation process, and Prepare your client in advance so they know
mediator sitting together in the same room. discussing confidentiality and privilege. the difference. There is no jury or judge
As such, you may wonder how to make the A mediator’s opening remarks vary in to convince in mediation. The goal of an
most of the opening joint session. How much style and duration, but they all have one opening session is not to convince the other
should you say? What tone should you set? thing in common: it’s the mediator who side that you are right and they are wrong.
Should your client speak? What will the does the initial talking. While this gives There is plenty of time later in the process
other side say? Undoubtedly these and other you and your client some time to gather for the mediator to help both sides evaluate
questions will cross your mind. The purpose your thoughts, it would be a mistake not strengths and weaknesses and appreciate risk.
of this article is to help you make the most to listen to the mediator. Besides learning If your client is still confused about why your
of the opening joint session. Disputes are not important details like where the bathrooms mediation advocacy feels different than what
resolved based solely on opening statements, are located, listening to the mediator they expect at trial, the mediator can help
but an effective joint session does set the stage gives insight into that mediator’s style and explain the difference.
for productive negotiations and ultimately for preferences. What tone are they setting? Do The opening session is an opportunity
resolution. they project confidence and optimism? Are to establish a rapport and start to build
they managing expectations? Are they clear credibility with the other side. Finding
Greetings and Salutations about confidentiality? When will we caucus? areas of agreement and common facts,
The first purpose of a joint session is to greet Listening to the mediator’s opening remarks identifying areas of disagreement, and even
the other side: to put faces with names. At provides useful information that can help acknowledging some of your own risk goes
a minimum, counsel and the parties should counsel decide how to effectively use the a long way towards establishing credibility
introduce themselves to the other side with mediator later when the negotiations hit the with the other side. That credibility can be
a sincere and cordial hello. First impressions inevitable rough patches. invaluable down the road when negotiations
matter, and I am always amazed when a Counsel should also encourage their inevitably hit an apparent impasse. A
mediation participant tells me hours into clients to listen to the mediator. This gives scorched-earth opening statement can
the mediation how offended they are that the your client a chance to learn about the cause the other side to reactively devalue
other lawyer didn’t even bother to say hello. mediator and their mediation process. everything you say after that. On the other
There are enough barriers to settlement in This also gives the mediator a chance to hand, a firm but fair opening will lend
mediation, so why create another by ignoring establish a rapport and to build trust with credibility to arguments you make later in
the basic courtesy of greeting the other side? your client. If you have accurately described the mediation. You are unlikely to convince
Exchanging pleasantries about the weather, mediation to your client, then the mediator’s the other side with an overly adversarial
sports, or traffic begins to establish a rapport opening remarks also reinforce your client’s opening statement, but you do run a very
that can set the stage for later negotiations. confidence in you and your settlement high risk of causing them to become further
Astute negotiators recognize that the parties recommendations. It can also be useful entrenched. A lawyer’s opening statement
are bound together in this litigation, and to to refer back to the mediator’s opening should demonstrate that they are prepared
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