Page 41 - JulAug2019_BarJournal

ADR FEATURE

and knowledgeable about the case, but
also that they acknowledge the costs and
risks inherent in trial. Counsel can dial the
advocacy up and down as appropriate, but GET ENGAGED!
shouldn’t forget the primary purpose of the
Is it the other party? The mediator? Opposing JOIN A SECTION
mediation opening session.
It is also important to identify your audience.

counsel? Your own client? All of the above?
Opening statements in mediation provide ADR Section
the rare opportunity to address the other Meets first Tuesday of the Month
party directly, without the filter of opposing
counsel or the mediator. It is a chance to tell MARK I. WACHTER, Chair
Wachter Kurant LLC
them directly that there are alternative points (216) 292-3300
of view, and therefore risk. However, it is not mwachter@kawkkwt.com
the time for personal attacks. Calling someone
a liar will frustrate the mediation process. Any
concerns about a client’s credibility should be Family Law Section
rd
addressed in private caucus with the mediator. Meets 3 Thursday at CMBA Conference Center 12:00pm
Some of the most effective opening statements JOHN D. RAMSEY, Chair KYLEIGH WEINFURTNER, Chair
simply acknowledge that the parties don’t Kohrman Jackson & Krantz LLP Zashin & Rich Co., L.P.A
agree about certain things, while stating that (216) 696-8700 (216) 696-4441
kaw@zrlaw.com
jdr@kjk.com
they are here today to compromise and seek
common ground.
Your Client’s Opening Remarks
Allowing your client to speak in mediation
offers insight into which aspects of their For information on how to join a section or committee, contact
claim are most important to them. Lawyers Melanie Farrell at (216) 696-3525 or mfarrell@clemetrobar.org.
are very good at articulating legal positions,
but the clients themselves are often best
at identifying their underlying interests. decide who goes first. Whether you speak listen. While it is important to prepare your
Further, sometimes clients present new first, second, or last, you will have the opening remarks, astute readers will notice
information in their opening remarks. I opportunity to listen to the other mediation that a majority of the topics above involve
am always amazed in a personal injury participants. Listen to opposing counsel. listening, not talking. There is an old saying
case when a lawyer learns for the first time How well do they know their case? Their that is often repeated in mediator circles
in mediation that their client has recently client? Which facts and legal arguments that we humans have two ears and only one
gone back for more medical treatment, or are they emphasizing? Are they setting the mouth for a reason. Counsel and their clients
that their property damage claim was never stage for negotiation and compromise, or are become so focused on what they are going
resolved. Because so few cases go to trial, they attempting to litigate in their opening to say at mediation that they often forget to
mediation is also your client’s opportunity statement? As for their client, what kind of listen. Remember, the goal of the opening
to have their “day in court.” Telling their witness will they make? Does their appearance session is not to convince the other side,
story, and feeling heard and understood match their demeanor at deposition? Do they but rather to establish a rapport and start to
clears the path for resolution. Allowing your emphasize the same points as their counsel? If build credibility that you can use later in the
client to speak in mediation also gives you not, what aspects of the case seem important process. Being respectful and listening with
the opportunity to asses them as a potential to them? Above all else, listening to others in the goal of learning something new about the
witness. How do they present? Are they the joint session is an opportunity to learn case will lead to more productive mediations
articulate? Will they have jury appeal? Do invaluable information to help you advise and better results for your client.
they present differently at mediation than your client about settlement later in the
at their deposition? What is their comfort mediation process.
level in the courthouse and what is their Matt Mennes is the civil mediator
risk tolerance? Conclusion for Cuyahoga County Common
Cases are not won or lost in the opening joint Pleas Court. He has been a CMBA
The Other Side’s Opening Remarks session. Instead, an effective joint session sets member since 2015. Matt may be
Most mediators ask plaintiff ’s counsel to the table for productive negotiation, and often reached at cpmxm@cuyahogacounty.
speak first. Others invite the parties to reveals invaluable information to those who us or (216) 443-8504.
JULY/AUGUST 2019 CLEVELAND METROPOLITAN BAR JOURNAL | 41