Mediator's Opening Statement Content
The mediator’s opening statement is a critical initial step toward effective mediation. The opening statement not only educates the parties as to the mediation process, the goals and the general game plan, but also sets the tone for the session. Of utmost importance is the opportunity for the mediator to establish his credibility with the parties. Although the content and scope of the mediator’s opening statement is subject to personal style and circumstance, the following is a checklist of information which should be included in most opening statements.
1. Introductions __Self __Name __city where officed __Background/experience __Professional experience __Educational background __Mediation training and experience __Experience in the subject matter of the dispute __How selected as mediator for this session __Parties __Names __Addresses (if needed) __Title/ position __Role in the dispute __Claimant __Respondent __Attorney for claimant/respondent __Other persons present
2. Prior Acquaintances __Who knows whom
3. Disclaim Any Bias or Partiality __Prior acquaintances or relationships __Disclose any possible conflicts of interest or factors which might give rise to perception of bias or favoritism __Limited knowledge of the facts of the dispute
4. Positive Acknowledgment of the Parties’ Willingness to Cooperate and Seek Resolution of Their Dispute
5. Parties’ Prior Negotiations __When __Outcome
6. Authority of Parties Present to Reach Binding Agreement/settlement
7. Explain Mediation Process __Define mediation __Mediation is not for every case __Goal of mediation: To achieve a mutually acceptable and lasting agreement which will prevent the need for future litigation __Gives each party a chance to express his/her opinions __Not a court proceeding (even if court ordered) __Role of mediator __Explain the mediator’s qualifications __Emphasize mediator’s impartiality and neutrality __As to the parties __As to the dispute __Inform the parties of their right to raise the issue of the mediator’s partiality and lack of neutrality should it be perceived __Parties’ right to cease negotiations __Parties’ right to solicit services of another mediator __parties’ right to pursue another method of negotiations __Emphasize mediator’s role as a facilitator and not as a decision maker __Not present to serve as judge __Will not express his/her opinion __Will not evaluate the case for a party __Will serve as an advocate for resolution of the issues __If mediator is a practicing attorney, point out that not acting as an attorney but as a mediator __Emphasize what mediator can contribute to the process __Identifying issues __Identifying needs __Exploring alternative solutions __Focusing the discussion toward a mutually acceptable resolution __Maintaining momentum and progress of the negotiations __Acting as go-between among the parties __Mediator’s scope of authority __No authority to impose fine, jail time, or sanctions __No authority to render decision __No authority to dictate terms of any settlement/agreement __Will not get into documents __Explain the mediator’s style regarding intervention into the parties’ negotiations __Advantages and benefits of mediation __See the checklist “Advantages and Benefits,” supra __Emphasize that the process belongs to the parties, not the mediator __parties are in control of the outcome __Outcome is limited only by the parties’ imagination and willingness to cooperate __Mediation as an informal process __What is to occur during this session
8. Explain the Limits of Confidentiality __As governed by the laws of the applicable jurisdiction __As governed by the wishes of the parties __Confidentiality of the overall proceeding __Confidentiality of private caucus sessions __Obtain permission of parties to take notes __For mediator’s benefit to assist with negotiations __Not a transcript for the proceeding __To be destroyed upon termination of the mediation
9. Explain the Legal Effect of Any Written Agreement __Enforceable under common law principles of contract __Terms of the agreement may be incorporated into the final decree of the court which referred the case to mediation
10. Explain Game Plan/agenda __Opening statements __All parties __Uninterrupted __Opportunity for questions after completed __Time limit (if desired) __Take off the trial hat __Alternate joint sessions with private sessions __Private caucus sessions __Initial private caucus sessions will be lengthy __Side-bar sessions __Breaks __Meals __Joint preparation of written agreement, if needed __No final argument 11. Explain Caucus Sessions __Purpose __Opportunity for confidential discussion with mediator __Opportunity to consider alternative solutions __Opportunity to evaluate new development and proposals __Opportunity to reach consensus of members of the group (multiple persons representing a party) __Confidentiality __Length of time should not be misinterpreted __May be called by mediator or either party
12. Discuss Projected Time Involved __To reach settlement __To conclude this particular session (if additional sessions anticipated) __Determine if parties’ desire to set an agreed-upon deadline
13. Procedural Guidelines __Outside observers or witnesses __Smoking __Interruptions __Disclosures to the media/press (if applicable) __Witnesses __Breaks __Meals
14. Discuss Procedure for Suspension or Termination of the Process
16. Obtain from the Parties and Their Counsel a Commitment __To the process, and __To spend the time necessary to come to a resolution
17. Answer Questions
18. Obtain a Mutual Agreement to Begin
