When mediation is discussed, someone invariably questions whether an opening statement by the parties at the initial joint session with the mediator is advisable. The reaction is often mixed, with many attorneys asserting that they eschew opening statements because they believe them to be counterproductive.
The basis for this position is understandable. Experienced advocates contend that the opening statement rarely adds information not already known to the opposing party while its tone and content may assure the failure of the mediation. It is often presented in a manner that is insulting to the other side and creates an even greater rift than already existed. Many attorneys wrongfully view the opening statement in mediation as the functional equivalent of an address to a jury that is intended to convince both mediator and opponent of the absolute correctness of their position and the outrageousness of the opposition. Moreover, because such statements are often so argumentative, even the party who makes one often finds itself locked into a position of psychological self-righteousness from which it is difficult to extricate oneself gracefully.
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