Unpacking the Mediator's Opening Statement
By: Rob Daisley, IAM Distinguished Fellow
Email: email@example.com Posted: June 10, 2015
Like a good Top 40 song from the days when Kasey Kasem counted them down
every Sunday morning, a Mediator’s opening statement of no more than
three to four minutes is more likely to become a hit. We Mediators pack
tons of valuable information into our brief opening statements. Here is
an unfiltered Mediator-to-Participant guide to assist you in
understanding some of the more important themes frequently conveyed by
Mediators in our opening statements.
“Our mission today is to ‘get to the printer’ – with a final settlement agreement.”
This is mediation, not arbitration. You are here. So is the other side.
We are all here for the same thing, to settle the case. Is that not
wonderful? We already agree on one important thing. Of course, at
mediation, everybody wants something from somebody else. Generally
speaking, plaintiffs want a check and defendants want a release. The
Mediator is looking for signatures on the lines which are dotted.
Everyone is more likely to be successful by asking nicely. Please do not
confuse this business negotiation with a trial.
will we begin? We first attempt to gain an understanding of the
perspectives of the parties. It is mission-critical to listen.”
The other side sees things differently than you do. This is your
opportunity to let them know where you are coming from and vice versa.
You need not convince them that your position is correct, nor agree with
theirs, but both sides need to understand how reasonable people (read:
judges and juries) could reach differing conclusions from one set of
“When we begin negotiations, please keep in mind that it is the last offer that counts, not the first.”
During the first round of negotiations, please forego the “I guess this
mediation is over” melodramatic wince. The Mediator wants to get to
work and so should you. We all have settled cases that started out
“miles apart” and reached impasse in cases that began with offers very
close to each other. This is not your first mediation, is it? Please act
accordingly and leave the overacting to Shatner.
is a step-by-step process. We need to walk forward down the trail.
Pauses are fine. But if you try to go backwards, you will fall on your
buttocks.” In mediation, backslides are death. If you think
that you can justify your backslide, so can the other side. Go slowly if
you must, but mediation progress occurs in one direction only –
forward. Please think through what that six-figure backslide you were
planning for round one will accomplish.
“Compromise is not a four-letter word. Compromise is a very effective
means of getting to the printer. And getting what you need.”
Some parties attend mediation with an avowed goal of not compromising.
Without compromise, we would be out of a job. Human beings are reluctant
to “give up” anything. At mediation, we seek mutual compromise. This
frequently requires changing the question from “what do you want” to
“what can you live with.”
“At mediation, though, the parties decide the case. If the parties opt
for trial, they get trial. The most important question all day: do you
want to resolve your case by settlement or by litigation?”
Yes, the subtext here is “you certainly may go to court, if you are
insane enough to so choose.” This is a soft takeaway, a gentle reminder
that there are no locks on the doors. The parties have control during
mediation, so they should take advantage of the opportunity.
ultimate goal, of course, is peace. If we succeed in getting a
settlement to the printer, by the weekend this entire dispute will have
faded to sepia.” Mediators are in a unique profession. We work
in the alternative dispute resolution field. Put more directly, we are
in the peace business. All we ask is that you give peace a chance.
Please note that each IAM Blog posting represents the view of its individual author,
but not necessarily others associated with IAM.
IAM Blog Editor Keith L. Seat may be contacted at firstname.lastname@example.org.