Why Not to Make Opening Statements

Times have changed. In the past, mediators would open a mediation by asking for opening statements from lawyers for each party. Problem was, though, these were typically so inflammatory that a meeting that was supposed to be about resolution started with animosity. Sometimes, one side walked out right then, before the real mediation even started. That’s why I have never invited opening statements at the start of a mediation. Lawyers no longer want opening statements, either. I have even had lawyers ask that there be no opening joint session with all parties present. Rather, they wanted to work with me only in caucus, one side meeting with the mediator,  keeping every communication confidential. The lawyers wanted to avoid the hostility that previously permeated the parties’ dealings. Unless there is strong objection, I start mediations in a joint session. I introduce myself and go over logistics: important stuff such as where the bathrooms are and how we will handle meal breaks. See also: How Mediation Should Progress   I also assure everyone that nothing bad can happen. The parties control the outcome, and there can be no result they did not agree to. Everything that happens in mediation is confidential and cannot be used against anyone in a different civil forum. To emphasize that rule, while we are still in the opening joint session every person present signs a confidentiality agreement. Then we typically break up into caucus. The only person who has made an opening statement is me, the mediator.