Stage One: The Mediator's Opening Statement
The first lines in the mediation drama are known as the “opening statement.” The mediator will usually start things off by making a short speech describing, in simple terms, the procedures and rules of mediation.
Listen carefully so you’ll understand exactly how things will proceed—even if you are an old hand at mediation. The mediator’s rules and procedures may be slightly different from those you’ve used before. When the mediator finishes, you will have a chance to ask questions.WHERE TO SIT
Typically, the mediator will come to greet you and the other parties in a waiting area. He will introduce himself to everyone and then escort all of you together to the conference room or other room where the mediation will be held. He does it this way to protect his image of neutrality. If the mediator brought one side into the room before the others, the party entering last might wonder if the other party had said anything to influence or prejudice the mediator.
Once in the conference room, the mediator will invite you to take a seat at the table. There is no strategic advantage in jockeying for table position; the mediator usually knows where he wants you to sit and, much like a host at a dinner party, will direct you to a seat. A typical seating plan places one party on one side of a rectangular table, the other party directly across, and the mediator at the head. A lawyer or witness who comes with you will usually be seated next to you, or perhaps just behind you if there isn't room for everyone to fit at the table. If for some reason you are uncomfortable with the seating arrangement, speak up and the mediator should be willing to accommodate you.
1. The Purpose of the Opening Statement
The mediator will use the opening statement to achieve two important goals: to explain the mediation process, and to gain control of the mediation.
The mediator has temporary control just by virtue of making the opening statement, but that is not the same as earning the trust of both you and the other party. This temporary control can be lost if the mediator doesn’t act quickly to hang onto it. For example, if one party calls the other a rotten liar, things can quickly get out of hand; the other person might leave, take a punch at the other, or more likely, make the same type of accusation, which could bring the mediation to an early adjournment.Only by gaining and keeping control can the mediator keep the mediation on track and moving forward. Everything your mediator says and does is designed with this goal in mind, including meeting you in the waiting room, presenting a neat appearance, and speaking politely and respectfully. The mediator will try to continue in this fashion during the opening statement, by speaking confidently, answering your questions fully, and otherwise demonstrating intelligence, sensitivity, and lack of bias—in short, by proving to be someone in whom you can and should place your trust.
2. Sample Opening Statement
The opening statement below is adapted from those typically delivered by a mediator at a community mediation center. But no matter what the mediation setting, you’re likely to hear something very similar. In this example, the parties are neighbors who have come voluntarily to a community mediation center to try to resolve a dispute involving noise, among other problems. Neither has brought an attorney.
Introduces Self: “Good morning, my name is Tom Watson. I’m the mediator who has been assigned to your case.” (Or, if you selected the mediator, “I’m pleased you selected me as the mediator to hear this case.”)
Introduces Parties: “Before we go any farther, I want to make sure I have everyone’s correct name and address. On my left is Elizabeth Ferraro of 112 Bristol Ave. And on my right is Mr. Richard Rafferty, 644 Eastbrooke Drive. Mr. Rafferty, the witness you have brought with you is Mr.
Robert Medden of 206 Savannah Boulevard.”Commends Parties: “I would like to start by commending each of you for choosing mediation as a way to resolve your dispute. By doing so, you have given yourselves the opportunity to solve this problem in a cooperative, rather than an adversarial, way and with greater flexibility, speed, and privacy than you would likely have in court.”
States Goal: “This community mediation center is a nonprofit organization set up to help people in our town resolve their disputes. Our goal is to help you find a solution to your problem that will be fair to both of you and workable in the long run. Our experience is that disputants who work in good faith during the mediation have a very high success rate in reaching an agreement and sticking to it. My job is to help you do this.”
Explains Mediator's Role: “As a mediator, I have been trained and certified by this center to handle disputes such as yours. I have no authority to make a decision about your dispute or to recommend one to a judge. I can’t send anyone to jail or impose any fines. My only job is to help you find your own solution to this dispute.
“I am completely neutral. I don’t know either of you, and I know very little about your dispute except its general nature as you described it on your submission forms.” (Rules of this community mediation center did not allow disputants to submit a memorandum prior to the mediation. If they had, the mediator would know more about the case and the positions of the parties and would refer at this point to the memos. See Chapter 5, Section D.)
No Time Pressure: “One of the advantages of mediation is that we are under no time constraints. This room is available to us for as long as we want it, and I am prepared to stay here as long as our effort appears to be productive. If, as we go along, you want to take a break, just let me know and we’ll do that.” (Some mediating programs, particularly those run by court systems, do impose time limits.)
Explains Procedure: “We’ll begin today by having each of you make an opening statement, telling us what this dispute is all about from your point of view.
“Ms. Ferraro, because you were the one who initiated mediation, you will go first, and then Mr. Rafferty will have his turn. While one of you is speaking, I’ll ask the other to just listen without interrupting, no matter how much you disagree with what you hear. You will have a chance to speak as well. If you need to make notes to remind yourself of comments you want to make later, there are pads and pencils on the table for you to use.
“While each of you is speaking, you may notice me taking notes. If I write something, it doesn’t mean I agree or disagree with what has been said. I am taking notes just to help me keep track of the facts.”
Use of Evidence: “While you are speaking, you can show us any evidence you have brought with you, such as bills, letters, photographs, or whatever. The purpose of evidence is to help us understand your side of this dispute. The technical rules of evidence followed in court are not followed here, so I am willing to look at anything you want to show me. The other person will be able to look at it, too.”
Discussion Stage: “After the opening statements, we will begin to discuss the issues in dispute, and hear from any witnesses you have brought today. During this discussion phase, you can each say whatever you like, but I will stop you if you use profanities or other inappropriate language, and ask you to find a different way to make your point.”
Caucusing: “At some point, I may want to talk to each of you separately in what is called a caucus. If that happens, I will ask one of you to leave the room while I speak with the other. I will keep everything you tell me in a caucus confidential and I won’t reveal it to the other side, unless you give me specific permission to do so. If I spend longer in caucus with one of you than the other, it doesn’t mean I am partial to one side, it just means that it may be taking me a little longer to understand all the facts and the options available.”
Confidentiality: “You have both signed a pledge to keep everything said and revealed in this session confidential.” (This pledge usually appears in the mediation agreement both parties signed before the mediation.
See Chapter 5, Section A.) “I have taken a similar pledge to keep secret everything you say or show me. In fact, when this mediation is over, I will even throw away my notes.” (At community mediation centers it is common practice for mediators to destroy their notes after a case concludes. Private mediators handling business disputes often keep their notes in case the parties want to come back into mediation to address related disputes.) “The mediation center considers this rule of confidentiality the most important rule of mediation and expects each of you to uphold it strictly.”Consent Agreement: “As I said, our goal today is to find a solution to your dispute that both of you feel is fair and workable in the long run. If we can find such a solution, I will help you write it up in the form of what we call a consent agreement.” (See Chapter 7 for more on writing an agreement.) “This will be an official document, which will be notarized after each of you signs it. It will be a binding contract and may be legally enforceable in court.” (In disputes involving large sums of money, property, or legal rights, the parties will often want a lawyer or business advisor to review an agreement before signing. Chapter 7, Section E, explains how to arrange for this. Especially in this situation, the agreement reached in mediation may not be the final, detailed agreement between the parties, but just provide a solid basis for further negotiations.)
Questions: “Now, before we begin with your opening statements, are there any questions? If not, then Ms. Ferraro, let’s begin with you. Please tell us what this case is all about.”
B.