Mediation Message No. 3

OPENING STATEMENT V. PRELIMINARY REMARKS

After the mediator’s introductory comments at the beginning of a mediation, counsel are given the opportunity to make an opening statement. Because the purpose and method of this presentation are both similar to and dissimilar from an opening statement at trial, I prefer to call them preliminary remarks.

An opening statement at trial is supposedly not for argument; instead, it is the time for counsel to tell the judge or jury what he/she intends to prove. While preliminary remarks at mediation can include the same content (especially if discovery has been completed and trial is imminent), their purpose is more than just to educate and impress the trier of fact.

• Preliminary remarks can be argumentative. In other words, they can include not only a summary of the potential evidence but also an evaluation of that same evidence and why counsel believes he/she shall prevail at trial;
• Preliminary remarks can reference legal issues (such as the result of demurrers, motions to compel discovery or impending motions for summary judgment);
• Unlike trial, where the feelings of opposing counsel and his/her client are not necessarily catered to, attorneys operating in good faith at mediation should be careful in their preliminary remarks not to alienate the opposing side;
• Preliminary remarks can be limited by counsel or the mediator to specific issues (such as causation or damages);
• Even when discovery has begun and the parties have exchanged mediation briefs, preliminary remarks will most probably provide the opposing client (as well as the defense adjuster) the first opportunity to assess the other side’s case;
• A well rehearsed client can participate in the preliminary remarks by answering questions posed by his/her attorney;
• In the appropriate situation and with the close supervision of the mediator, attorneys may be given the opportunity after their preliminary remarks to ask questions of their opponent regarding specific legal issues and facts.
• With the encouragement and assistance of the mediator where the parties are amicable and agreeable, preliminary remarks can be used as a vehicle for additional discovery (especially as to continuing damages) and concessions.
In other words, preliminary remarks are an extremely important part of mediation.

Copyright, Michael D. Marcus, June 2003

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