by Allan Stitt
There has been a strong movement lately to get rid of Opening Statements (sometimes called Storytelling or an Opening) at the beginning of mediations. Lawyers tell me that they each understand the other side’s case, and won’t be persuaded by each other’s arguments, so don’t see the point in having an Opening. They also suggest that the Opening Statements will polarize and unnecessarily antagonize.
Many mediators agree and dispense with Openings, especially if the parties have gone through discovery.
While I agree that there are situations where an Opening is unnecessary, I think this is an unfortunate trend and that lawyers are missing an important and unique opportunity when they dispense with the Opening Statement.
Lawyers are not wrong when they say that won’t persuade each other. But that is not the purpose of the Opening.
The most important purpose of the Opening, in my opinion, is to help the other side understand the case that you will present in court that a judge could accept. In order to make concessions to you and to your client, the other side doesn’t need to be convinced that your client is right or will win, they just have to see the risk that a judge will find against them or, in their view, ‘get it wrong’. If they perceive that risk, they will make concessions. The more risk they see, the more concessions they’ll make.
So your Opening should be focused on what arguments you would make in court, what evidence you’ll be relying on, what law you’ll use to convince the judge that your client could win, not on why your client is right or why your client will win in court.
The distinction is subtle, but important. For example, if there is a credibility issue in your case, your Opening should not focus on the fact that your witness is telling the truth, but rather that your witness is believable. A lawyer at a mediation I was at said recently, “I wasn’t there; I don’t know who’s telling the ‘truth’; but I do know that my witness sounds believable. If a judge believes my witness, we’ll win the case”. The issue in a credibility case is not who is telling the truth, but whom a judge will believe. If the other side believes that your side’s witness could be believed (even if they are convinced that your side’s witness is lying), they may perceive a risk and see the benefit of making compromises.
And that’s where the mediator comes in. If lawyers present in the way I’ve suggested, the mediator can use what was said in caucus to discuss with each side the risks of a judge finding against them. The mediator doesn’t have to focus on who will win; just on the risk of a judge finding against them based on the arguments presented at the Opening.
If you present the arguments you’ll be making as opposed to arguing that your client is right and will win, that will significantly remove the risk of polarizing and antagonizing. After all, you are just presenting what you will be arguing in court, not suggesting the outcome in court. There’s nothing for the other side to argue about because you’re not saying that your arguments are the ‘objective truth’ or the ‘fair result’ (two of the common antagonizing themes in Openings), you’re just telling the other side what you’ll be arguing.
So in determining whether an Opening would be helpful, you should ask yourself whether the other side’s lawyer has explained your case to his or her client as well and as persuasively as you could. If the answer is yes, there is little value in the Opening. I’ve yet to have a lawyer tell me that the answer is yes.
Allan Stitt is the President of ADR Chambers where he mediates and arbitrates. He also teaches ADR with the Stitt Feld Handy Group.