Mastering the Mediation Joint Meeting: Your Opening Statement

Whilst never coming across anyone who looks forward to a mediation, the part most dreaded is the staring across the table at “the opposition” and verbally presenting an opening statement. It is however a really good opportunity to explain the impact the dispute has had and to give context to the legal arguments that have often by this stage taken over.

Who provides the opening statement?

Usually it is the legal representative that provides the opening statement.  The Mediator will however give everyone present an opportunity to speak.  For some this can mean having to dig deep and step outside of their comfort zone in order to put into words exactly what the dispute has meant for them. The purpose of the opening statement is to be persuasive and it is useful to focus upon the points that will make the most impact on the other party.

When should the statement be prepared and what should it contain? 

The opening statement can be prepared beforehand and read out. Whilst there are no formal requirements as to its content, the following guidelines will lead to a statement that is effective:-

• State your interpretation of the events clearly and describe them without reference to legal terminology.
• Deliver the statement in a confident and professional manner which asserts your determination and confidence in your case – take your time, don’t rush, speak clearly
• If there is common ground between the parties, acknowledge that and identify what is agreeable – strange though it may seem a slight acknowledgement of an agreed fact however obvious can make a difference
• If there are weaknesses in your case, do not overlook them completely. This should be treated with care. If you acknowledge that there are areas which are open to challenge, it demonstrates you are aware of those issues and remain confident in your position – as opposed to failing to think there is any potential risk at all. This can remove the thought from your opponent that you have failed to consider the bigger picture;
• Explain what will happen if settlement is not reached – this is key for everyone to understand. What are the consequence of not securing a settlement at mediation?

TIP: There is no need to repeat statements to reinforce them.  Reading a statement that is clear, structured and confident is highly effective in demonstrating your commitment and serious approach to the dispute.

TIP: If at all possible, avoid being defensive and attributing blame….that can be difficult.

What is the point of the opening statement? 

The opening statement itself enables everyone present to understand each other’s interests, aims, objectives and priorities.  It is also your opportunity to show how you will react in Court and whether a Judge would see you as a credible witness.  I have experienced a commercial mediation when a party sat staring at the table, giving no eye contact and relied solely on their Solicitor to deliver the opening statement.  It demonstrated that in Court, there was a strong likelihood that the individual would find giving evidence a challenge and when faced with an opponent that sat confidently delivering an open statement maintaining eye contact with everybody in the room there was a stark contrast which elevated an on paper weaker legal position to one of perceived strength.

The opening statement can set the tone for the entire It is correct that not every mediation needs to start with an opening statement but at some point it can be helpful for the parties to come together.  If you can take this first step and agree to a joint meeting with the Mediator, a mediation could often move forward much more quickly.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk