Two weeks ago, I attended a day-long seminar on mediation which included eight mediators and two claim representatives in a panel format. One of the most controversial topics (to the extent there can be controversy in a room of mediators) was opening statements in a mediation session. I think I fell in the minority of mediators who promote opening statements. As a mediator who still litigates primarily on the plaintiff side of civil cases, I want my client to hear what the opposing side is going to say about the case so that the client doesn’t hear that perspective for the first time at trial.
I try to speak to mediation participants before the mediation session to get a read on whether an opening will be fruitful. I have seen on multiple occasions the tone in the room being set with well-prepared, noncontentious openings. I have also seen great results when the claim representative expresses condolences or regret for a plaintiff’s injuries or loss in the appropriate set of circumstances. I encourage litigants going into mediation to consider presenting an opening statement.