Mediation Mind Shifts Series: Part 3B

Posted on: Mon, 12/06/2021

Opening “Mindfully”: Counsel Considerations

By: Harold Coleman, Jr., Esq., CCA, Senior Vice President, AAA-ICDR®; Executive Director/Mediation, AAA® 

Mediation Mind Shifts are the critical, incremental shifts in thinking that must occur to move people embroiled in conflict from entrenched, diametrically opposed positions at the outset of mediation toward the goal of resolution at the end. 

These shifts transpire in the parties’ perspectives on the people involved, on the law applied, on the “facts” interpreted, on the risks assessed—and on the very possibilities presented through mediated problem-solving and settlement negotiations. 

This post addresses the opening phase of the mediation process. The mediation begins with opening presentations, otherwise known as "opening statements." These in essence are initial remarks of the mediator, party representatives, and other potential participants.

The focus here is on how attorneys can open "mindfully"; i.e., in a manner that sets an appropriately positive tone for constructive dialogue and genuinely collaborative, joint problem solving. The previous post was on mediator openings.

As the Greek philosopher Plato remarked in "The Republic," The beginning is the most important part of the work."

Opening Presentations Delivery Should Be Thoughtful and Empathetic

Opening presentations should be sincere, not rote, and tailored, not "canned." Their tone should start positive, stay positive, and inspire hope for an optimistic outcome. The goal of an opening presentation is to set expectations, establish a framework for efficient engagement, and set a firm foundation for essential "special components." 

These special components are the mediation process itself, logistics and confidentiality; expectations of behavior and decorum, and a commitment of all parties to engage in respectful and considerate "storytelling." 

Overtly adversarial and inflammatory opening presentations by counsel avail little at mediation. They do nothing but turn off other parties and diminish hope for a successful outcome. Worst yet, such presentations intensify feelings of distrust for the other party and possibly the process itself. 

Rather, counsel are strongly advised to tailor their mediation presentations to the unique, forward-looking focus of this non-adversarial dispute resolution process. They should signify to other parties and counsel a willingness to commit to genuine joint problem solving, with the concomitant flexibility required to reach mutually acceptable goals. 

Counsel would do well to save the vociferous argumentation for later adjudicative proceedings should the mediation conclude with continued impasse. Indeed, being firm and direct while also professional and polite need not be mutually exclusive during opening presentations at mediation. 

It is important to note that people tend to take their cues from their leaders. If counsel engage in unnecessarily adversarial posturing and inflammatory rhetoric during their initial mediation presentations, clients and other mediation participants are likely to do the same. Thus, it is incumbent on counsel to exercise that quality of leadership that speaks well for the legal profession; i.e., that characterized by civility, respect, and professionalism. Anything less is counterproductive to effective mediated problem solving.

Opening Presentation Language Should Be Non-Polarizing

The most effective opening presentations are often devoid of the labels used in adversarial processes. For instance, one can do much to set a positive tone for collaborative problem solving by removing certain words and phrases from the mediation lexicon. Is it really useful to refer to other parties as "the other side," "opposing counsel," or worse still, one's "adversary" or "opponent?" 

Similarly, could it not be more efficacious to speak of one's "perspective" rather than “position?" Must the negotiation phase be spoken of in terms of legalistic "offers," "counter offers," "counter parties" and the like, rather than simply exchanges of "settlement proposals?" And wouldn’t avoiding that amorphous term "bottom line" be tremendously helpful to encourage participants to deeper creative thinking and open-minded joint problem solving? 

Words and language matter--perhaps more so in mediation than in other dispute resolution processes. The "language of lawyering" appropriate in adjudicative settings actually diminishes the quality of communications aspired to through mediation and the spirit of cooperation necessary for the most productive outcomes possible. Seasoned mediators, astute counsel, and participants alike need to acknowledge the power of language and apply it appropriately in the cooperative non-adversarial pursuit of mediated problem solving. 

Effective Opening Presentations Shift the Focus from the Problem to Possible Solutions

When opening presentations are purposeful, framed strategically, crafted carefully, and delivered thoughtfully and empathetically, the stage will have been set for a productive and potentially satisfying mediation experience for all participants. 

At the end of the day, the essence of a productive mediation experience is satisfaction: party or personal satisfaction, process satisfaction, and mutually acceptable outcomes satisfaction—which may or may not entail full settlement of the issues. 

A mindful opening phase is essential to the "mind shift" needed to achieve these ends. Indeed, an old mindset produces nothing but old results, whereas a new mindset produces new results!

Questions to Reflect on:

  • What kinds of opening presentations have I observed to be particularly mindful and effective? What made them so?
  • What might I change in the content and delivery of my opening presentations in the future to set a positive tone and one more conducive to cooperative problem solving?
  • How might I change the words and language I‘m accustomed to using at mediation to those more encouraging to productive communication and trust building?  

If you missed it, check out the first section of OPENING “MINDFULLY”: MEDIATOR METHODS in the AAA-ICDR Blog. Topics covered:

  • Purposeful Opening Presentations 
  • Strategically Framed Opening Presentations 
  • Carefully Crafted Opening Presentations 

MEDIATION MIND SHIFTS: PART 4 will explore "Purposeful Caucusing," an element of mediation process often occurring shortly after opening presentations. 

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