The last blog post I wrote about whether you should make an opening statement at mediation. I gave four key reasons why you usually will want to make an opening statement. Here’s a checklist to help you decide when to make an opening statement, when you can skip it, and the one circumstance when you HAVE to skip it.
You SHOULD Make an Opening Statement if…
___ 1. You are a young attorney or have not yet established your reputation in the field where you are currently litigating.
___ 2. You do not know the adjuster or decision-maker on the other side.
___ 3. You need to establish trust with your client, you have a difficult client, or you are unsure how your client will react at mediation.
___ 4. You have any reason to believe that anyone on the other side — the lawyer, client, adjuster, in-house counsel, or any other decision-maker — may not know all the facts.
___ 5. The mediator needs information about your case.
___ 6. You want to make a good impression on the other side.
You Do Not Have to Make an Opening Statement if…
___ 1. You are a senior attorney with an established reputation in the field in which you are currently litigating.
___ 2. You know the adjuster and decision-makers on the other side.
___ 3. You have the full trust of your client.
___ 4. You are certain every person present — including the lawyer, client, adjuster, in-house counsel, and any other decision-maker — is aware of all the key facts.
___ 5. You sent the mediator a mediation brief in advance.
The One Exception: You Should Not Make an Opening Statement if…
___ 1. The litigation is extremely bitter, and you think that making an opening statement will hurt your chances of settling the case.
At mediation, your goal is to reach a settlement, assuming it can be done on terms that are fair and reasonable for your client. An opening statement should help that process, not inflame the other side.
If you think that an opening statement will actually diminish the chances of settlement, then it makes sense to skip it altogether. You also should give me a heads up in advance. I can arrange the seating at the opening conference to minimize the conflict, or even eliminate the conference altogether.