Opening Statements –To Give or Not to Give?

What happened to opening statements at mediations?  Theories abound as to why and how this practice largely disappeared from securities mediations.  I’ve got to be honest – I enjoy a well-done opening statement and would like to see more people give them. 

What makes a good opening statement?

 First, it’s got to be constructive.  I know you want to come out swinging and let your opponents know how badly you’re going to crush them at hearing if they don’t settle, but please resist and aim for being effective. A strong but more subtle or surgical approach is key and you can let the other side know how great you believe your case to be without calling people liars and cheats before we get started trading numbers.

Second, a strong opening statement demonstrates a solid understanding of the relevant facts and theories that you think should move the case toward resolution. Some relevant documents to back up your position are always helpful if you have them. Emails or correspondence that directly contradict the position one side is taking are effective documents to read from or show in mediation, coupled with statements like, “My client understands that you recall [insert fact here], but we are concerned about several emails that have been produced that indicate that this may not be the case.” I can tell you for certain that seeing written documentation that contradicts a party’s rendition of the relevant facts up on a big screen or on a paper in front of that person’s face (or the lawyer’s) sets the tone you are interested in setting.

Third, it should discuss damages.  If there are things in the P&L that are driving your settlement stance, let’s hear about them.  Why should the other side focus on one or just a few of the investments in the portfolio or why should the overall portfolio or a certain time frame be examined?  Why is this case that should be viewed under a particular damage theory and how are you arriving at the numbers under that theory?  What back up your view that money was lost or not lost?  How are you quantifying damages that extend into the future for lost wages, lost income or other damages that aren’t P&L-based? 

Finally, your opening statement should convey that you ae earnest in your desire to settle the case,  that you have come to the mediation with what you believe to be appropriate and adequate settlement authority (whether or not the other side agrees), and that you invite the other side to share their own view of the case and engage in robust settlement discussions that you hope with resolve the matter.

Next time you mediate, see how useful a well-done opening statement can be.

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