It is not uncommon for attorneys to waive their opening statements at mediation. Sitting across the table and telling the other side why they are wrong and you are right can be difficult face-to-face. Sometimes the case has already been litigated at great length and spending time on opening statements seems a waste of precious time. The opening statement, however, is an opportunity to go beyond pure legal arguments and the typical all-or-nothing approach of litigation. In litigation you strive to prove your point and negate your opposition's position. But in mediation you must recognize your opposition's position and persuade them to agree to a resolution that meets everyone's needs. With this more collaborative approach in mind, an opening statement is an excellent opportunity that should not be waived, except in the rarest of cases.

An opening statement provides a unique opportunity to speak directly to the other party without the filter of their attorney or the mediator. Such direct communication can often produce better results. Even if the litigation is in its later stages and you have already set forth your position in motion papers or otherwise, don't assume the other party has all that information. Everything the other side knows about the case is through opposing counsel and may be skewed by the attorney's shared perceptions and guidance regarding the case. Further, relying solely on the mediator to relay your position to your adversary can ultimately take more time and increases the risk of a miscommunication. The opening statement may be the one time you can speak directly to the other party without such filter or risk.