Stage Two: The Parties' Opening Statements

After the mediator’s opening statement, it will be time for you and the other party to speak. You will each have a turn to make an opening statement. Typically, the party who initiated the mediation goes first.

1. How to Make Your Opening Statement

This is your chance, finally and without interruption, to tell the other party and the mediator exactly how you see the dispute. Consider how delicious this opportunity is: Even if you have previously tried and failed to negotiate a settlement, you probably never had the chance to tell your side of the story without being interrupted. Even if you had taken your case to court instead of mediation, you would be constrained by court rules to limit your testimony to the narrow legal issues in dispute, and you would probably face constant interruptions in the form of objec­tions from opposing counsel.

But in mediation, the floor is yours. No one will stop you (unless you just ramble on too long). No one will object or try to twist your words. If the other party does try to say something, the mediator will quickly remind him to let you make your presentation without interrup­tion. If witnesses are in attendance, some mediators may ask them to leave the room during the opening statements so their views are not influenced by what the disputants say. They will be asked to return later to speak.

Here are some guidelines for making your opening statement.

a. Speak to the Mediator

Stay seated, use a conversational tone, and speak directly to the media­tor. Unless the mediator invites you to use first names, address the mediator and the other parties as Mr. or Ms. (Later, if the mediation is going well, you may begin speaking directly to the other party, using a first name.) Addressing your remarks to the mediator has at least two benefits: It helps you keep calm by avoiding having to look directly at the other party, and it helps you establish a rapport with the mediator.

b. Start at the End

Your task in your opening statement is to tell the mediator and the other side what the dispute looks like from your point of view and how it has affected you. The best and simplest way to do this is to start at the end of the story—that is, to explain the event that triggered the mediation. If this was a loud party or a dog bite or a fender bender, start with that, so the mediator knows what the dispute is about. Then go back and fill in important preliminary facts that will help the mediator understand how your dispute developed.

Opening Statement for Neighbor Dispute: In Case 1, described in the introduction to this chapter, Ms. Ferraro starts at the end of her story: “I’m here today because my backyard neighbor, Mr. Rafferty, keeps me up at night with noise from his parties. The trouble began in July of 2003. Before then, the neighbor­hood was very quiet. I could sleep with the windows open and never be disturbed by noise. But that summer is when I first started being woken up at night by noise from parties that Mr. Rafferty had at his backyard pool. Our houses back up to each other.”

Opening Statement for Lease Dispute: In Case 2, Mr. Nehru begins by saying: “I’m here because my company, United Tea Bags, Inc., rented space from Ms. Sherman. After we vacated the building last month, she didn’t return our security deposit, which, according to our written agreement, was refundable. Our company represents several nationally known tea manufacturers and sells tea bags by the case to restaurants, hotels, and some convenience stores. A couple of years ago when we were looking for local office space, we met Jane Sherman, who had space to rent in the Four Corners Office Park.”

Opening Statement for Business Ownership Dispute: In Case 3, Mike Woo starts this way: “We’re here today to resolve—one way or the other—a problem between Ted McDonald and me that has been growing for nearly three years.

c. Use Dates Carefully

As you tell your story, pinpoint when important events happened as accurately as possible. This will help the mediator place everything that happened in correct chronological order. (If you submitted a Pre­Mediation Memorandum, you have already begun this process.)

Neighbor Dispute: Ms. Ferraro: “The first time I was woken up by noise from a pool party was one night around the middle of July 2003 at about 2 a.m.

I remember the incident because the next morning I had to be up at 6 a.m. for an early flight to Chicago for business.”

Or, looking again at the lease dispute:

Lease Dispute: Mr. Nehru: “We signed a lease for 1,800 square feet of office space in Ms. Sherman’s building to begin on January 1, 2001 and run for two years, until December 31, 2003. We left the premises on schedule, on Decem­ber 31st.”

Mike’s recollection of his problems with Ted in the pizza business are keyed to an important date:

Business Ownership Dispute: Mike: “I signed over 50% of the stock to Ted around October 12, 2002—I remember the date because it was right around Colum­bus Day and we had a big special on deep-dish Sicilian-style pizza. The next night was when we had our first big argument in front of the employees.”

Showing the mediator that you can be reasonably accurate with dates is also a good way of demonstrating that you will be reliable when relating other information, too.

d. Display Evidence as You Tell Your Story

To help illustrate and support your point of view as you tell your story to the mediator, you may want to present photographs, receipts, medical reports, and other evidence. (See Chapter 5, Section C, for more on evidence.) A display of compelling evidence may also prompt the other side to change position, or at least show that you have the evidence necessary to take your case to court or arbitration if you can’t reach a settlement.

0 Think twice before you present evidence likely to anger or embarrass the other party. Your goal is to solve the problem, not to win a court case.

That’s why it’s counterproductive to present evidence that is likely to upset the other party—you will only scuttle your efforts to reach a settlement. For example, in the neighbor dispute, Ms. Ferraro, the neighbor complaining of loud pool parties, might have found bits of roll-your-own cigarette paper that wafted onto her lawn. She may believe this is evidence that her neighbor and his guests have been using marijuana, but it would be a mistake to introduce this at the mediation. It is not relevant to the noise dispute, and accusing her neighbor of drug use will only increase the level of animosity, possibly ruining any chance of working out a settlement.

Display your evidence as it comes up in your story, rather than all at once at the beginning or at the end. Here are some examples:

Neighbor Dispute: Ms. Ferraro: “I tape-recorded what I often hear from my bedroom window when Mr. Rafferty has one of his work-night parties. The recording on this cassette I brought today was made from a tape-recorder placed on the ledge of my bedroom window at 1:30 a.m. on a weekday morning in July. I am playing it at the same loudness that I hear when trying to get to sleep. You can clearly make out the shouting and the loud music.” [With permission of mediator, she now plays the tape.]

Lease Dispute: Mr.

Business Ownership Dispute: Mike: “We’ve been unable to keep any chief cook employed in our restaurant for more than six months at a time because they always end up having problems with Ted. Here are resignation letters from two of them, in which they clearly state that they are leaving because they find it too difficult to work with him.”

The mediator will look at any documents and other evidence you present, then pass them to the other side to view. Because the floor is still yours, the other party will usually not be allowed to comment or ask questions at this time. To avoid interrupting your presentation, the mediator will also probably hold major questions or comments about your evidence until later.

e. Do Not Conclude Your Opening Statement With a Demand

When you have finished explaining your version of the dispute, stop talking. Resist the urge to conclude with a strong demand, such as, “I insist Mr. Rafferty not have any guests in his backyard after 10 p.m. or I will call the police.”

Making a demand or proposing a solution at this stage not only risks needlessly annoying the other party, but it also locks you into a settle­ment demand you may wish to change later. Better to find out what the other side wants and is willing to give up before you reveal what you want. As the mediation proceeds, you may learn that you could have asked for more—and gotten it.

f. What to Do If Your Lawyer Is Present

Unless a case involves complicated legal issues or lots of money, you won’t need to bring a lawyer to mediation. If you do decide to bring a lawyer, you will probably want to do most of the talking yourself and have the lawyer advise you about the legal implications of proposed settlement terms. If your case raises complicated legal issues, you could have the lawyer share the opening statement with you.

g. Making an Impression on Your Mediator

In theory, what your mediator thinks of you as a person should not affect the outcome of the mediation. After all, the mediator doesn’t have the power of a judge, so personal likes or dislikes should not enter into the picture. This is why parties to a mediation are best served by focus­ing on the other party—not on the mediator—as they make their opening statement and participate in negotiations.

However, mediators may sometimes be influenced in their work by their personal impressions of the disputants. A mediator who sees you as reasonable and reliable will take your position seriously. A mediator who clearly understands your point of view will also be better able to help the other party see where you’re coming from, if this opportunity comes up in a private caucus. And as part of the caucus process, the mediator may share impressions of you and your case with the other party. If the mediator understands the strength of your position and convinces the other party that you would make a strong adversary in court, this might encourage the other party to agree to a compromise.

0 Sometimes, the mediator has the legal power to influence the decision. In

some states, when judges refer particular kinds of cases to media­tion, the mediator has some legal authority to influence the judge's ultimate decision if mediation is unsuccessful. In California, for example, where divorcing couples are required to mediate child custody and support issues, the mediator may recommend how the judge should decide these issues if the parties can't agree. Or, if you are participating in “med-arb” (a hybrid process that combines mediation and arbitration; see Chapter 1, Section D, for more information), the mediator will decide the issues as an arbitrator if the parties cannot reach an agreement. If your mediator has the legal power to influence the outcome of your dispute, you will obviously want to work very hard to impress the mediator with your sincerity, your integrity, and the strength of your case.

h. What the Mediator Is Up To

Some mediation participants feel that no one (outside their family and closest friends) has ever listened to them quite as attentively as the mediator does during their opening statement. These mediators are doing a good job demonstrating, through gestures, facial expressions, and body language, concern both about the facts of your problem and about your emotional reaction to it. This is called “empathic listening,” an important skill mediators draw upon to help build trust and maintain control of the mediation.

Q Don't dismiss your mediator as a phony. Just as some people are put off by therapists, some mediation participants have a negative reac­tion to a mediator’s effort to convey interest and concern. Here is our advice: Give the process a chance. Although occasionally a mediator will come across as being just a little too sincere, the great majority have an honest desire to help people solve problems. Even if your mediator’s style doesn’t quite work for you, it might work for the other party—and therefore, create greater possibilities for settlement.

In addition to listening attentively, the mediator should also be ready to help you tell your story. For example, if—like many disputants under the pressure of making a statement—you stumble on one or more details of your story or mix up names or dates, the mediator should ask some clarifying questions to straighten things out. Sometimes the mediator accomplishes this by summarizing what you have covered, which gives you the chance to make any needed corrections or addi­tional points.

2. The Other Side's Opening Statement

When the other party makes an opening statement, your job is to listen carefully. You will often hear things about your dispute that you didn’t know, such as a fact you weren’t aware of or the other party’s emotional reaction to your conduct. You might also hear some clues about the type of settlement the other party might accept.

a. Do Not Interrupt

Keeping quiet and calm may not be easy, especially if the other party is prone to exaggeration or just plain lying. Perhaps it will be easier to refrain from interrupting if you remember three things. First, you’re not in court, where the judge has the power to make a decision based on misinformation. Second, the mediator will have lots of experience dealing with people who exaggerate or lie. And third, you will have a chance to say whatever you want during your uninterrupted time. Make a note of the statement that upsets you and raise it later if it still seems important.

b. Listen for Wants and Needs

In Chapter 5, we noted the importance of understanding the difference between “wants” and “needs.” Your wants are the positions you’ve staked out—for example, a demand for a sum of money, the right to live in a rental house, or getting your old job back. Your needs are your underly­ing interests, such as emotional and economic security, respect and recognition, avoiding needless expense, aggravation, or stress, and maintaining important relationships. As we noted, people’s needs are often different from, and easier to satisfy than, their wants.

During the other party’s opening statement, try to differentiate between wants and needs. For example, your business partner may insist on being named president of the company; this want reflects a need for power and recognition. Or, a bank officer may demand (want) that you pay a loan back immediately, but what the bank “needs” is to make a profit and protect its assets. Even if you agree to pay the loan back gradually, its needs will be met.

The point of trying to distinguish between wants and needs is simple. If you can see past the other side’s stated “wants” and instead focus on underlying “needs,” you may be able to think of alternative ways of satisfying everyone and ending your dispute in a mutually satisfactory way.

c. Look for Bargaining Chips and Opportunities

By listening carefully to the other party’s opening statement, you may also discover some bargaining chips you didn’t know you had. Your opponent may, for example, refer to a problem or dispute separate from the one you are discussing. Your first reaction may be to get angry, because you are now faced with another “unfair” accusation. This would be a mistake. Far better to treat the new subject as an opportunity. For example, you may find that the new issue involves something you can easily eliminate or control, and therefore is a perfect trade for an issue you care more about. In short, you’ve picked up a bargaining chip that may be useful later in the mediation.

Neighbor Dispute: Mr. Rafferty: “You know, I would like to feel I can enjoy my own yard without having neighbors rushing to call the cops the second things get a little loud. And if she’s so concerned about being a good neighbor, why doesn’t she keep her dog on a leash like she’s supposed to, and out of everyone’s trash?” [Possible bargaining chips for Ms. Ferraro include a promise not to call police without advance warning, and a promise to leash her dog.]

Lease Dispute: Ms. Sherman: “I have no interest in withholding a tenant’s security deposit if I’m not entitled to it. It doesn’t do me any good to have my former tenants running around this town badmouthing me.” [Here, a possible bargaining chip for Mr. Nehru might be to promise not to discuss the dispute with other business owners.]

Business Ownership Dispute: Ted: “I thought when we got into this business I could help out my sister’s husband by buying our imported cheese from him. But because of all the problems between Mike and me our business has been extremely uneven—do you know how embarrassing it is to continually place and then cancel cheese orders from my own brother-in-law? Instead of helping him out, I’ve actually ended up costing him money!” [A possible bargaining chip for Mike in trying to get Ted to sell him back his stock in the restaurant would be an agreement to have the restaurant continue to buy imported cheese from Ted’s brother-in-law.]

You should always be listening for new information—and not just to discover bargaining chips. Sometimes, you might learn something that causes you to rethink your own position. Look for these openings and use them as a path to compromise.

C.