By Mediator Lee Wallace
Trying to figure out what to say during the opening statement at your next mediation? Focus on your goals and then cover these key points — and you’ve got it.
Keep Your Goals in Mind
As you think about what you want to say in the opening conference, keep in mind your goals in making an opening statement: • To communicate information about the case to the mediator. • To show the other side that you are serious and prepared, and will be a formidable opponent at trial. • To make sure the other side understands the key facts in your favor. • To reassure your client that you are prepared and ready to take his or her side. For more about these goals, see my blog, Should You Make an Opening Statement?
Keeping these goals in mind, you should address several key points during your opening statement.
1 – Overview Your Case.
Give a quick overview of the facts underlying the lawsuit, what the allegations are, and who the key players are.
2 – Briefly Summarize Your Best Evidence.
You want the mediator and the other side to know the facts in your favor. Your statement does not have to be argumentative, but it should be chock-full of the best, most persuasive facts that support your side of the case.The more specific your statement is, the more credible it will be. For example, the statement, “The deposition testimony will show Defendant caused the wreck,” is o.k. The statement, “We deposed Joe Smith, who was driving directly behind your client, and at page 16 of his deposition, he says he saw the Defendant cross the center line,” is better.
The statement, “Plaintiff did not receive all of her injuries in this wreck,” communicates your argument. On the other hand, the statement, “According to the ER records, the Plaintiff did not mention back pain right after this accident, whereas the medical records from Dr. Smith show that Plaintiff did complain of back injuries after her earlier wreck in 2010,” is far more persuasive. Specific statements are more convincing, and they also show the other side that you have a full command of the facts and evidence.
3 – Overview Your Damages and How You Calculated Them.
To increase your chances of settlement, you should provide a thorough damages analysis to the other side in advance of the mediation. But to be sure the other side understands your point, overview your damages. Where calculating the damages is complex — for example, qui tam cases or class action matters — you also will need to explain the damages model you used.
4 – Explain Your Legal Arguments, If They Are Disputed.
In the majority of mediations, the law is relatively settled and the parties are joined on other issues. But in cases that are mediating while on appeal, or where the law is relatively new or unsettled (as in False Claims Act cases), the parties may have serious disputes about the law or how it will apply in the case. In that case, you need to give a thorough — not just a quick — explanation of what your arguments will be. You should not assume the decision makers on the other side have read or understood your legal arguments.
5 – Don’t Forget the Human Part of the Equation.
Lawsuits and settlements are ultimately about people. While facts matter, for the sake of the other side as well as for your client, you need to humanize your client. Talk about how the injuries have impacted the plaintiff’s life, or describe how the defendant has been devastated by the accusations or by what happened. If your defendant does not admit liability, you are dealing with a business dispute, or you have an adjuster with you, briefly introduce the people present and add a small, personal detail about each one.Your mediation opening statement does not need to be long, but remember that it will set the tone for the rest of the day.
What Attorneys Are Saying About Mediating with Lee:
“Lee had the intellect necessary to get a really difficult case settled even where the odds were stacked against her. I would use Lee to mediate any of my cases.”
“Lee helped get a case settled that I never would have imagined would have settled that day when I walked into that mediation. Opposing counsel and I had drastically different views of the case, as did our clients. Yet, with Lee’s knowledge, experience, and preparation, she was able to lead us to a resolution that my clients were satisfied with. I look forward to using Lee again in the future!”
“Lee’s calm reasoning and creative solutions helped us to resolve a challenging case when one side was willing to walk away and the other side would not budge on their number. She worked hard to find a compromise when none seemed possible.”
“Lee brings to her mediations a wealth of experience from which all parties can draw. Her impressive ability to marry the case facts to negotiation strategy aided in the just resolution of our case.”
“Lee was prepared, having read all the documentation I had forwarded her pre-mediation, and she did an outstanding job in getting a difficult case settled. I look forward to using BAY Mediation and Lee in the future.”
“Lee Wallace helped us resolve a case that I did not believe could be resolved. As an initial challenge we had multiple parties, several of whom had to join by remote video conference. The details of the case were also challenging [and] there were widely disparate views regarding case value. Lee was resolute, objective, and prepared. While her 30 years of trial experience and breadth of knowledge on a variety of legal issues were invaluable, her kind and logical demeanor got this case resolved. I must confess at one point I was ready to storm off myself in frustration at the other party, but Lee encouraged me to stick with it and keep working. I’m so glad she did!”
“It was a pleasure working with Lee T. Wallace during the mediation process. She pushed both sides to continue to fight through the process and not give up. And because of her vigorous determination I was able to settle my client’s claim to their satisfaction.”
“Lee did an effective and efficient job getting this case to a successful resolution. She takes a low key approach to make sure each side does not feel undue pressure to increase their offer or decrease their demand. I will definitely use Lee for future mediations.”