Is it a mistake to waive your mediation opening statement, avoid a joint session and go directly into caucus? Before you answer this important question, consider the fact that in the last fiscal year there were over three million new Florida Circuit and County court filings, adding to the cases already burdening the courts. Out of these millions, most jurisdictions have less than one percent of civil cases that never empanels a jury.
With so few civil cases being settled inside a courtroom, a mediation opening statement is a great opportunity to speak informally to the settlement authority of the opposing party. Disputing parties seldom have the opportunity to interact in person. Usually, their only communication has been through angry letters and legal correspondence. It is time to put aside contentious trial-type opening statements, diffuse anger and hostility, and set a more positive compromising attitude needed in order to reach a mutually agreeable resolution.
It is time to humanize the opposition and create a credible, sincere neutral tone for the rest of the mediation session. Verbally attacking or insulting will never lead the other party to be more compromising. The old expression "you get more flies with honey than with vinegar" has never been truer when dealing directly with people. By acknowledging and appreciating what your opposition is experiencing helps build a relationship of trust.
Your opening statement should be persuasive and begin by explaining to the Mediator and all members of the opposing party a brief summary of who the parties are, the issues involved, and what is at stake. Many times the Mediator doesn't always get much information beforehand to formulate a strategy to create a path to move forward. Present all the facts and key arguments so everyone understands the strengths and weakness of the dispute. This is not the time to hold back information to be used as your "trump" card. A surprise rarely helps to move along the mediation. It only builds mistrust and diminishes the ability to resolve the dispute.
Often the opposing party, not their attorney, has tunnel vision and only sees the dispute from an emotional viewpoint. Stating strengths and weaknesses of the dispute will possibly help create doubts and convince both sides that a compromise is necessary. You will never convince the other side that they are wrong but you can convince them that you are willing to find common ground and explore resolution opportunities.
Your mediation opening statement should calmly and reasonably impress all parties that a deal can be reached, and if not settled your opening statement will show the other party that you are serious and would be a formidable force before a judge or jury.
So don't pass up a great opportunity to provide a well thought out mediation opening statement. Keep it succinct, persuasive, and creditable. Have the opposing parties perceive you as sincere, objective, and willing to settle the dispute outside a courtroom. It can be a win/win resolution!
