Chapter VI PARTICIPATING IN THE MEDIATION

• Jurisdiction: United States

VI. PARTICIPATING IN THE MEDIATION

Jerry M. Markowitz, et al.

A. Overview

Jerry M. Markowitz

Before mediation begins, a mediator's role includes providing an agenda of how the mediation is to proceed. In general, the parties begin with a joint session, with all parties and their attorneys. During the initial joint session, the mediator explains the mediation process and the parties have an opportunity to make their opening statements.

The next goal of the mediator is to garner the parties' trust. Trust is the element that gives the mediator his or her credibility and engenders the parties' confidence. If the parties put their trust in the mediator, they may be more willing to consider the mediator's frank analysis of an issue that may or may not be in their favor. Often, when parties are dead-set on being right, it takes the analysis of a third-party neutral to redirect that type of stubbornness.

The actual running of a mediation is largely dependent on personal style. First, it is important to be mindful to choose a physical space for the mediation that is appropriately sized and that helps facilitate a resolution. The following chapter will discuss the importance of "active listening," a number of verbal support tools that the mediator can use to navigate the mediation, and the summary at the end of the mediation.

After the mediation is complete, the next step is to prepare and execute the post-mediation settlement agreement. As will be discussed more fully below, this is a critical phase to conclude the mediation.

B. Opening Statements

Jerry M. Markowitz

1. The Mediator's Opening Statement

At the onset of the mediation, during the first joint session, the mediator should give an opening statement that covers the agenda of the mediation, including the rules, how the mediation is to proceed, and a brief summary of how the mediation process will conclude. A clear roadmap of the mediation provides the parties an additional level of comfort and trust that is essential to a productive mediation. The parties need to not only be comfortable with the mediator, they also need a sense of comfort with the process and how it is supposed to proceed.

Very basically, the mediator's opening statement allows the mediator to discuss ground rules for the mediation, allow for accommodations to the parties, provide an opportunity for parties to ask questions, and provide an opportunity for the mediator and the parties to agree on the general agenda. It is important for the mediator to let the parties know that this is their mediation. While the mediator is there to help the parties if they decide they want to settle the case, it is not the mediator's objective to make them settle.

The opening statement should begin with a warm welcome from the mediator to the parties. Next, a brief discussion of the mediator's background and qualifications can be helpful in bolstering the mediator's credibility. People like to hear that their mediator has done this before and get comfort from knowing that others have successfully navigated the treacherous waters of mediation with this competent mediator. The mediator should also discuss his or her role and the structure of the mediation meeting, including its duration, joint meetings, how caucuses work, how and when to ask for breaks, and the purpose of follow-up meetings. It is important to recognize that not all of the lawyers or even the parties have participated in a mediation before.

In the mediator's opening statement, the mediator should convey impartiality. The mediator is neither a judge nor a jury, and a mediator's business is not being judgmental of the parties or the facts. To this end, it is important that the mediator be sensitive to his or her own biases.

The mediator should also address the confidentiality of what is discussed during the mediation, specifically its parameters and limits. The mediator should look to and be familiar with local practice and local rules on confidentiality. The mediator should identify how information conveyed during caucuses will be treated and assure the parties that nothing will be conveyed outside of a caucus without prior permission.

Finally, another important purpose of the mediator's opening statement involves helping the parties understand and come to terms with their own "optimism bias"⁹⁹ — "the bias that influences a party or counsel to believe that their case is a sure winner."¹⁰⁰ A mediator's opening statement, and indeed role in general, is to "[e]ncourage parties to be realistic and objective in their evaluation of their positions and the consequences of failing to settle and to be mindful of their 'optimism bias.'"¹⁰¹ By taking the parties' blinders off, the mediator can help them see the middle ground that will ultimately lead to a peaceful resolution.

2. The Parties' Opening Statement: Purpose

The very basic purpose of the opening statement in mediation is for each party to succinctly state their position and that position's basis in both fact and law. The opening statement is important for both the opposing party as well as the mediator, as it provides an opportunity to express "your client's understanding of the opposing client's situation."¹⁰² Very often, the opening statement will be the only opportunity you will ever really have to talk directly to the opposing side. Simply, the parties state their position and why — factually and legally — they think it is the correct one. "If presented in a reasonable and objective manner, the opening statement can illustrate your client's motivations and needs in a sympathetic light, while expressing your client's understanding of the opposing client's situation."¹⁰³ In addition to presenting the case in a sympathetic light, the opening statement can be an opportunity for the opposing party to see your case's strengths.

The litigants' opening statement is their opportunity to talk directly to the other side without the color that attorneys — no matter how good-intentioned — can sometimes bring to the issue. Litigants should be mindful that their opening statement is not designed to educate the mediator, who should have read everything and be familiar with the facts and issues as presented by both sides, but as discussed, it is a moment to give the...