Some mediators need less time and information than others to be effective and persuasive on both sides of a controversy; however, all mediators appreciate some pre-mediation communication to allow preparation, mental organization, and time to digest the issues prior to mediation.

Pre-Mediation Communication. Early client communication with their mediator can be accomplished with a brief pre-mediation letter, an email, or even a phone call. The mediator doesn’t need to know every issue and fact that has surfaced in the case, but it is an excellent practice to prepare a letter, summary, or brief to provide the mediator with a basic understanding of the case prior to arriving on the scene. Early communication gives your mediator an opportunity to begin a thought process, to formulate questions, and to accelerate his or her understanding of the case.

Informative Opening. The attorney’s presentation should generally be informative; however, if you have already provided the information, in part, to the mediator, the mediator will be better equipped to fully understand and focus on the key issues. The opening presentation, the foundation for the rest of the mediation, should be brief and to the point.

It is important that the client identify their goals and provide the mediator with the facts of the controversy for the opening presentation. Another goal of the opening is to send the adversaries a message or to exhibit the strength of your conviction about the case. It may be important to take the opportunity to address the opposing party directly and to show sympathy or empathy with his or her plight. It may also be important to allow your client to speak during the opening—the opportunity to vent can clear the way for a more effective negotiation.

It is highly unlikely that a client’s statement will convince their adversaries that the client’s position is correct and their position is wrong. So, focus on informing the mediator of the crux of the case, and make your arguments in a brief, cohesive, and persuasive manner. Some would say ”less is more” in a mediation opening statement.

Join the conversation next month for Part III: The Unavoidable Impasse. 

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