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The Value of Opening Statements

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.