An Opening Statement and a Carefully Orchestrated Joint Session Can Have a Positive Impact (Successful Mediation Tip #4)

Some do not see the benefit of a Joint Session or making an Opening Statement.  Significant advantages that can potentially accrue from a short, persuasive, and well-constructed Opening Statement.  Of course, there are some disputes and mediations where Joint Sessions and Opening Statements may be counter-productive and these unusual cases should be discussed thoroughly with the mediator prior to the scheduled mediation.  However, in most cases the Opening Statement, just like the Mediation Summary, is an excellent vehicle to persuade the opposing party to reconsider its BATNA. 

Moreover, depending upon the nature of the dispute and the personalities of the parties, the Opening Statement and Joint Session can also have a number of other beneficial purposes.  For example, and just to list a few: making an appropriate statement of regret or sympathy (where warranted and not to be confused with an apology); developing a rapport or empathy between the party representatives; allowing a party, desperately in need of having his or her “story” told in public, to have the satisfaction of that story being told by counsel in a persuasive and professional manner; suggesting to the opposing party the time is ripe for the parties to move past arbitrary positions and begin mutually exploring true interests; telegraphing to the opposing party the willingness to think creatively, etc.  

Let us not also forget the fact that numerous psychological studies establish that more information and insights are often obtained by reading the reactions, body language, intonations and expressions of others than is obtained by listening to the spoken word alone.  There is no reason to unduly restrict the information gathering process by routinely rejecting the potential benefits of a Joint Session.