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Mediator Opening Statement

What happens in those first few minutes of your mediation will likely dictate your effectiveness during the rest of the session. Start badly and you’ll struggle to command the respect of your clients as you try to salvage the process thereafter. Start strongly and your clients will realize they’re in the assured hands of a professional, enabling them to place their trust in you as their guide through the unfolding conversation.

Every mediator’s opening statement will be a little different. The following statement has worked well for me in some 500 mediations. I practice the facilitative model of mediation. The greater number of my cases are in divorce, family, and relational mediation (including small business and HOA/TIC disputes), but my opening statement varies little from one case to another.

My Opening Statement

Context: Jack arrives for mediation. Jill arrives a few minutes later. I’d previously spoken on the telephone to Jack only, who expressed a desire for divorce mediation. I sent an email confirming the mediation appointment to Jack and Jill. Jill had an open invitation to call me, but didn’t do so.

Hello and welcome, and please make yourselves comfortable {motioning to chairs}. It’s nice to put faces to voices {if I ’d only previously spoken by telephone to the parties} and to meet you in person.

The first thing I say beyond ‘welcome’ is congratulations. Now, I know I need to explain that because you’re thinking we’ve only just arrived so why is he congratulating us already? Well, I say congratulations because the very decision to choose mediation is a significant one and one likely to end in settlement. In fact, about 80% of people who get to the place you’re at — that is, into mediation — reach a full settlement of all issues. Choosing mediation isn’t an easy thing to do. It takes courage and maturity. But now that you’re here, the chances are very much in your favor.

Download complete opening statement (MP3 audio & PDF transcript) 

 [~ 2250 words]

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In the next few minutes I’m going to recap the highlights of the process and invite any questions before we dive into the substantive elements. But first I’d like to level the table, so to speak.

{Looking at Jack} Jack, according to my log, we spoke via telephone briefly about mediation on [date]. That was our only conversation, and all other communication has been via email for the purpose of coordinating dates and setting up this appointment. Is that right?

{Jack says ‘yes’.}

{Looking at Jill} Jill, I wanted to clarify that to really underscore that this process is every bit as much about you as it is about Jack. In fact, my only mission as a mediator is to give you both every chance of reaching a settlement. I have no other mission or agenda. It doesn’t matter who contacts me initially or sets up the appointment. I’m always working for you both equally.

My role as mediator is to be a guide through this process. We’ll work through all the issues relevant to your situation, but I won’t be telling you what to do. You’ll be making the decisions. I’m not an attorney, and even if I were an attorney I couldn’t give legal advice because to do so would be a conflict of interest. Mediators, regardless of background, can’t advise parties involved in the same action. If a mediator did advise a party in mediation, the other party would feel betrayed that the mediator is no longer working for them both and should abandon the process accordingly. Thus for a mediator to offer advice to either party would invariably destroy the process for all parties.

That said, I can offer legal information. Legal information is distinct from legal advice. Legal information is general in nature and publicly available, whereas advice is specific to an individual’s point of view. For example, legal information would be an answer to a question such as “What factors does a judge consider when setting alimony {also known as spousal support or maintenance in some states}?” That’s a general question that I can readily answer by reference to the California Family Code. An example of legal advice would be a question like the following: “If I were to agree to move out of the family home with the children, would the judge grant me more alimony so I could afford to pay the mortgage on another place?” You can hear in that second question something very specific to the individual’s point of view. An answer (or opinion) to that question could only come from an independent family law attorney working for that particular spouse.

Noting that I can’t provide legal advice, it’s certainly appropriate for you each to have access to legal advice should either or both of you wish. For example, you might wish to bounce ideas off your attorneys or have your attorneys review your proposed settlement before it’s filed with the court and becomes legally binding. To this end, you may wish to consult with consultant attorneys.

I should explain the role of consultant attorneys. A consultant attorney is available to you as and when you wish — maybe a half-hour meeting here or a ten-minute telephone conversation there. Consultant attorneys can be very complementary to the mediation process. They play a very different role from that of an attorney whom a party might retain in an adversarial litigation. In that role, the attorney is the legally appointed representative of the client, charged with contesting the case against the other party (or his/her attorney). The role is more extensive and much more expensive than the role of a consultant attorney.

If you don’t already have one, just let me know at any time if you’d like any referrals to consultant attorneys.

Okay, do either of you have any questions about legal information, legal advice, or the role of attorneys in this process?

Moving on, Did you have a chance to review the ‘Agreement to Mediate’ form? {this is the contract that I require my clients to sign at their first mediation session. It’s also available on mediationcareer.org}

{Handing out paper copies …} Please take as much time as you need to review it and let me know if you have any questions.

Had you discussed fee sharing? {According to their responses, I indicate whether the parties should indicate 50%/50% or some other arrangement on the fee-sharing part of the form.} When you’re ready, please sign the reverse side together with the attached contact information sheet.

{I then add my signature to each client’s copy and have each sign my copy}

Confidentiality. Mediation is legally confidential in California. This means that anything said in mediation or any notes or records from mediation cannot be admitted as evidence in court. Mediation has been made legally confidential in the California Evidence Code in order to encourage parties to use mediation as an alternative to the overburdened court system. The effect of legal confidentiality is to create a safe process in which parties can explore ideas towards potential settlement without the fear or risk that something they said in mediation could later get used against them in court. Anything said outside mediation or any documents that weren’t prepared expressly for mediation would, however, still be admissible as evidence in court. The bottom line is that legal confidentiality makes mediation a safe place to explore ideas without diminishing your rights to pursue litigation if mediation fails. Mediation can thus fulfill its role as a first resort, before litigation if subsequently necessary.

Besides legal confidentiality, there’s a practical side to confidentiality as well — namely, who will get to hear of what’s said today? (That’s often what people mean when they say “Is this confidential?”) In terms of practical confidentiality, I can assure you that I won’t be sharing anything with anyone. If you see me taking notes, it’s just so I can keep track of the conversation. I do not share my notes with the court or anyone else. You, however, may want to talk to others (mutual friends, best friends, family members, coworkers, etc.) about what’s said today. And in a moment I’ll ask about anyone with whom you might want to share information.

It goes without saying that you may both talk to independent consultant attorneys. Such is your unspoken right, and a party would frustrate the promise of mediation by seeking to frustrate the other party from exercising that right if he/she felt a wish to do so. Likewise for talking with professional therapists or other advisors or support professionals.

But are there any other people — family, friends, coworkers, etc. — with whom you’ll wish to talk? In asking, my purpose is to create transparency. Sometimes there are objections to sharing, and if there are in your case we’ll talk about them and likely work them through. I’d rather you proceed with transparency — that is, knowing in advance who might talk to whom — than proceed tentatively, perhaps with a doubt, misgiving, or suspicion about disclosures to another person.

So, since I’m looking randomly in your direction, Jill, I’ll ask you first. Is there anyone outside the room, besides a support professional, with whom you may want to share what’s said today?

{I’ll note anyone that Jill names. Then I’ll turn to Jack.} Jack, is there anyone outside the room with whom you’d like to share what’s said today?

{I’ll note any names offered by Jack then ask him:} Do you have any objection to Jill’s talking with [her named individuals]?

{I’ll note any objections then turn to Jill}. And do you have any objections to Jack’s talking with [his named individuals]?

{Occasionally, I’ll then need to work through a dispute around practical confidentiality. Never skip over this issue. It is often of great importance to parties.}

{Depending on the situation, I might also add the following, sometimes prompted by a party’s question about trust or enforceability of practical confidentiality.} Obviously, no one is going to be following you around, checking whether or not you talked to anyone. However, practical confidentiality is self-enforcing in that you should each know that to violating a confidentiality agreement will undermine trust in other aspects of the process and quite possibly cost you the chance of reaching a mediated settlement.

Okay, moving on to logistics. Mediation should last no longer than you both want to be present. Just let me know if you’d like to take a break to stretch your legs, visit the restroom, make a phone call, or whatever. Also let me know if I can do anything to make the environment more comfortable for you.

During the process I’ll be asking you each questions. Please address your answers directly to me rather than across at one another. That’s so I can effectively mediate — that is, be an intermediary. Intermediating in this way allows me to slow the conversation, which often enables people to be less defensive because they don’t have to be thinking how to respond directly — something that happens when people feel locked into a one-on-one conversation. Mediating allows people to truly listen to what’s being said by the other person. There may be occasions when I request that you do talk directly to one another later, but for now please address your answers to me.

Private meetings: For the most part, mediation takes place as we are now — together in the same room. However, there may be occasions when I meet privately with each of you. Private meetings are helpful, especially during impasse, if we get stuck. They give me a chance to check-in with you and better understand what’s going on. You’re also welcome to request a private meeting at any time — perhaps you want to bounce an idea off me or ask a question in private. Anything said during a private meeting remains private — that is, I wouldn’t share it with the other party — unless you’d given me explicit permission to do so. I always have private meetings near the beginning of the process as an initial check in, and you’ll see why in a moment. Who would be willing to volunteer for the first private meeting?

{Jack indicates he would be.}

Thank you, Jack. In that case, I’ll meet with you first, then we’ll switch around.

{Jill leaves the room. My private meeting with Jack begins.}

Thank you for letting me meet with you, Jack. To remind you, everything you say in a private meeting remains private. I have two reasons to request these initial private meetings. The first is, given that mediation requires parties to speak to their point of view, say what you feel is fair, what you’d like to see happen, etc., it’s really essential that you can do that. In other words, do you feel you can participate fully without fear of intimidation, coercion, etc? (It might even be that the source of, say, feeling intimidated is not Jill but someone else in the broader family.) So that’s my first question. Can you participate fully?

{Jack responds. In rare cases, I might counsel against proceeding with mediation or at least ask the party to let me know if feelings of intimidation begin to limit his/her ability to participate fully.}

My other question is simply whether there’s anything you’d like to ask me in this private setting.

{Jack responds}

Thank you, Jack. Let’s now switch around so I can meet privately with Jill, then we’ll reconvene and move into the substantive process.

{I lead Jack out of the room to the waiting area/lobby where Jill is sitting. I then lead Jill in for her private meeting.}

Thank you, Jill, for allowing me to meet first with Jack. I hope it wasn’t unnerving to find yourself waiting outside so soon after you arrived.

{I’ll then conduct my private meeting with Jill exactly as I did for Jack. On conclusion, I’ll bring Jack back into the room.}

Before we move into the substantive aspect of the process, are there any questions that either of you would like to ask at this point?

{I’ll answer any such questions, or assure parties that I’ll address them when we get to that part of the process.}

{Turning to either party} Now, I’m looking randomly at you Jill, so I’ll ask you first: What brings you into mediation today and what would you like to achieve? … And before you answer, {now turning to Jack} please be assured, Jack, that I’ll ask you the same question in a moment. This mediation is as much about you as it is about Jill, and I’ll ensure that you both have an equal opportunity to participate, shape the agenda, and raise issues of concern.}

So, Jill, what brings you into mediation and what would you like to achieve?

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