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The Attorney’s Opening Statements

Opening statements by the lawyers or parties’ representatives play an important part in the mediation process. They not only acquaint the mediator with the facts and law of the case but, if handled properly, set the tone for a successful mediation. Through these opening statements, each side is able to begin evaluating the other side, including the persuasiveness of their cases, the skills of the lawyers, and the appealability of the parties.

In the spirit of peacemaking, a lawyer should express words which encourage settlement, are conciliatory, and show concern for the welfare of the other parties. She also should present her client’s side of the case in an effective and persuasive manner, but not with the intent to intimidate or antagonize. If insurance is involved, an adjuster might also be encouraged to say a few words of concern for the plaintiff’s well-being, if this is appropriate.[68] Demonstrating a spirit of cooperation in the opening remarks on both sides can go a long way in establishing peaceful resolution.

A question arises as to how formal and detailed a lawyer should be in her opening remarks. Some lawyers prefer to make very detailed and formal presentations, almost as they would in court. This can be quite persuasive because it demonstrates that they are prepared and ready to go to trial. Others prefer short statements and rely on the mediator to argue their positions in private caucus. A more formal well-organized opening statement can go a long way in moving an opposing party to compromise and settlement. It demonstrates how persuasive an attorney will be before a jury. Also, it may point out factors that an opposing party had not considered or fully appreciated.

There are even situations where the attorneys may waive opening statements altogether. Again, the forgoing is an excellent opportunity to speak to the clients on the other side without interruption, which probably will be the first and only time counsel will have the opportunity.


Date: 2015-01-02; view: 865


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B. The Opening Joint Session | C. First Caucus
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