A different way to structure mediation opening sessions?

It is common for the participants to report back that the mediation opening session was “a waste of time” and, worse still, counterproductive.

This is usually a reaction to the opposing lawyer’s opening statement. The opposing lawyer will typically repeat the arguments set out in their position paper, over selling the strength of their own case and dismissing any potential weaknesses or risks as being non-existent. The lawyers and client on the receiving end are rarely persuaded by such a bombastic opening - it puts their backs up and sometimes, unintentionally, causes offence.

The problem is the same client expects their own lawyer to do exactly the same in return. When asked what they thought of their own lawyers’ statement, which is usually a mirror image of the one they complain about, they will report back positively. To make matters worse, when they hear their own lawyer over selling the strengths of the case they become emboldened, believing it to be true, rather than merely an extreme position as part of a negotiation.

The participants will often leave the opening session each feeling dismissive of their opponent’s position and emboldened by their own one. The opening session often seems to merely reinforce the participants’ preconceptions - it serves as an echo chamber where each party feels they are both in the right and banging their heads against a brick wall.

Of course a skilled mediator can attempt to unpick this damage and can implore everyone to think about the risks and work constructively towards a resolution, but those words can ring a little hollow. In those circumstances, you can see why the participants often view a traditional opening session as being a waste of time or even counterproductive.

The mediator can explain these problems to the lawyers in advance of the mediation and suggest it would be better for the opening statements to be balanced, to recognise the risks and to respond fairly to the good points made against them. The lawyers know that already - they know a mediation opening statement has a different objective, and so should be qualitatively different, to a court opening statement. Notwithstanding they will tend to ignore that good advice - not because they want to derail the process but in fear that their constructive opening would look weak if pitted against a traditional bombastic one. It takes two to tango, and no-one wants to dance alone. The lawyers are worried that making a constructive opening will leave them open to attack and starting the day “love -fifteen” down.

So does that mean that the participants should now dispense with the opening sessions all together? I think that would be a real shame, because the opening session - if done right - is a valuable and potentially necessary part of the process to find an acceptable resolution.

Getting everyone sitting around a table in one room creates the psychological message that everyone is there as part of a shared process to achieve a shared goal, namely an acceptable resolution - it creates a sense of engagement. This applies equally to a virtual table in an online mediation.

Also, it will sometimes be the first time the decision makers are able to meet the other participants - for example if the decision maker is an insurance adjuster or a head of risk/ board director. In these cases the decision makers may have false preconceptions about the participants or even a false understanding of the issues in play so it’s very important for these to be tested. You don’t want to wait until a party gives evidence at trial to test those assumptions and impressions. It is for this reason that a short presentation by the clients themselves can have the greatest impact on their opponents.

As well as the impact on their opponents, it is very important for the clients to be heard - i.e. to tell their story without having to go through the prism of their lawyers. This is usually, somewhat pejoratively, described as giving the clients “their day in court” - but it amounts to the same thing - it is much easier for a client to settle a dispute where he or she feels that they have been listened to.

What is evident from the above is that none of the advantages of an opening session actually requires an assertive opening statement from the parties’ lawyers, and as we know the clients often report back that those opening statements can undo all the good that could otherwise be achieved.

One solution would be to circumvent the lawyers all together in the opening session. But that would result in not giving enough attention to the many nuances, complexities and legal issues - the parties are unlikely to resolve the dispute if they feel short changed where the key points have not been fully identified.

The most successful opening sessions are ones where both parties leave the opening session at least understanding the other side's position while not necessarily agreeing with it. And that includes the complexities and the legal points.

We know from the feedback that the traditional opening session does not really achieve that objective - instead clients often leave the opening session emboldened in their position and dismissive of the efforts of their opponents. So, how can you square that circle?

One option would be for the mediator to provide a detailed and balanced summary of each of the parties’ positions in turn, including the legal arguments. This summary would be based on the written position papers and the documents supplied. The mediator would then invite the lawyers in turn to add anything which was missed out. Provided the mediator has done a good job, there should be little for the lawyers to add except maybe to agree with the summary and to respond to the good points that are made against them, which is often overlooked in a traditional opening. After that, the clients themselves should be asked if they have anything to add since, as discussed above, it can be particularly powerful for them to bring a human side to the dispute.

That structure would create a balanced and constructive opening session where all the parties leave understanding the other’s position, even if they do not agree with it, but without the risks of feeling dismissed, unintentionally offended or that they are banging their heads against a brick wall.

Mediations are a voluntary process so it is important for the parties to agree how the opening session should be conducted. The lawyers should react positively to this structure. They understand it should create a more constructive opening session - they don’t want to derail the process through their openings but that is sometimes the unintended consequence of a more traditional opening session where they are concerned they might be outmanoeuvred if they were to be constructive rather than dismissive.

Purists may object to this suggestion arguing that mediation is the parties’ process. I think that objection would be misplaced. The parties would agree to this structure in advance. The lawyers are in full control of what points they wish the mediator to identify and explain through their written position papers and they can still add their “magic dust” when asked to contribute by the mediator. More importantly, this structure gives a greater voice to the clients - sometimes you get the feeling clients are reluctant to say much if their lawyers have already spoken at length. So, all of the lawyers and the clients are included in the process - and the structure means their contributions are more likely to be constructive than destructive. And that is what mediation should all be about. Everyone contributing constructively with a shared goal of reaching an acceptable resolution.

Simon Goldring

November 2022