By: Rob Daisley, IAM Distinguished Fellow
Posted: June 10, 2015
Like a good Top 40 song from the days when Kasey Kasem counted them down every Sunday morning, a Mediator’s opening statement of no more than three to four minutes is more likely to become a hit. We Mediators pack tons of valuable information into our brief opening statements. Here is an unfiltered Mediator-to-Participant guide to assist you in understanding some of the more important themes frequently conveyed by Mediators in our opening statements.
“Our mission today is to ‘get to the printer’ – with a final settlement agreement.” This is mediation, not arbitration. You are here. So is the other side. We are all here for the same thing, to settle the case. Is that not wonderful? We already agree on one important thing. Of course, at mediation, everybody wants something from somebody else. Generally speaking, plaintiffs want a check and defendants want a release. The Mediator is looking for signatures on the lines which are dotted. Everyone is more likely to be successful by asking nicely. Please do not confuse this business negotiation with a trial.
“How will we begin? We first attempt to gain an understanding of the perspectives of the parties. It is mission-critical to listen.” The other side sees things differently than you do. This is your opportunity to let them know where you are coming from and vice versa. You need not convince them that your position is correct, nor agree with theirs, but both sides need to understand how reasonable people (read: judges and juries) could reach differing conclusions from one set of facts.
“When we begin negotiations, please keep in mind that it is the last offer that counts, not the first.” During the first round of negotiations, please forego the “I guess this mediation is over” melodramatic wince. The Mediator wants to get to work and so should you. We all have settled cases that started out “miles apart” and reached impasse in cases that began with offers very close to each other. This is not your first mediation, is it? Please act accordingly and leave the overacting to Shatner.
“Mediation is a step-by-step process. We need to walk forward down the trail. Pauses are fine. But if you try to go backwards, you will fall on your buttocks.” In mediation, backslides are death. If you think that you can justify your backslide, so can the other side. Go slowly if you must, but mediation progress occurs in one direction only – forward. Please think through what that six-figure backslide you were planning for round one will accomplish.
“Compromise is not a four-letter word. Compromise is a very effective means of getting to the printer. And getting what you need.” Some parties attend mediation with an avowed goal of not compromising. Without compromise, we would be out of a job. Human beings are reluctant to “give up” anything. At mediation, we seek mutual compromise. This frequently requires changing the question from “what do you want” to “what can you live with.”
“At mediation, though, the parties decide the case. If the parties opt for trial, they get trial. The most important question all day: do you want to resolve your case by settlement or by litigation?” Yes, the subtext here is “you certainly may go to court, if you are insane enough to so choose.” This is a soft takeaway, a gentle reminder that there are no locks on the doors. The parties have control during mediation, so they should take advantage of the opportunity.
“Our ultimate goal, of course, is peace. If we succeed in getting a settlement to the printer, by the weekend this entire dispute will have faded to sepia.”Mediators are in a unique profession. We work in the alternative dispute resolution field. Put more directly, we are in the peace business. All we ask is that you give peace a chance.