Phase I: The Mediator’s Opening Statement

Introduction:

This note will discuss what the mediator’s opening statement is, its object and purpose, sample outlines of the mediator’s opening statement, and a sample opening statement.

A. What it Is:

This is an initial address made by the mediator to the parties at the start of the mediation.

B. Object and Purpose of the Opening Statement:

In broadly describing the object and purpose of the mediator’s opening statement, McCorkle and Reese [1] advanced that:

The words that begin a mediation are critical. The opening statement establishes the tone and protocol for the session. A good opening statement builds trust and puts the mediator in control of the session. A poor opening statement erodes disputant confidence and permits the eruption of power struggles between the mediator and the parties. Domenici and Littlejohn (2001) established three purposes for the mediator's opening statement: introduce the disputants to the mediator and to each other, explain the mediation process, and establish trust (p. 40). The symbolic value of the opening statement should not be undervalued. The symbolism of the opening statement creates the first visible commonality for the parties: both are listening to and conceding process control to the mediator; both are developing a common trust in the mediator. Additionally, the content of the opening statement establishes important procedures and rules, setting the tone and expectations for the mediation.

The opening statement, regardless of its form, must achieve the following:

1. Introduce the parties and the mediator to each other as a team working to resolve the parties’ issues.

2. Establish a comfortable environment.

3. Build trust and rapport between the mediator and each party.

4. Establish the mediator’s control of the process. It is essential for the parties to know and accept that the mediator controls the proceedings.

5. Establish that parties control the outcome of the process. While the mediator controls the process itself, the outcome of the mediation process is arrived at by consensus. The parties must be made aware of this fact.

6. Explain the caucus: This is the term used for the confidential individual meeting the mediator may have with each party if need be. It is important to explain this in the opening statement so a party does not think the mediator is being partial when he caucuses with the other party. Under Section 74(2) of the Alternative Dispute Resolution Act, 2010 (Act 798) , the mediator has the power to meet the parties separately as the section provides that “A mediator may conduct joint or separate meetings with the parties and make suggestions to facilitate settlement.”

7. Time restraints: These may be in the form of pre-determined session lengths, court-imposed deadlines, speaking time for the parties, among others.

8. Explain that the parties may be represented by a lawyer, an expert, or any other person of their choosing. The fact that such representation can be done is provided for in Section 71 of Act 798 .

9. Explain the voluntary nature of the process. Among others, the fact that parties can withdraw from the process at any time and the circumstances for withdrawal should be explained.

10. Get the parties to agree with the guidelines that are established to guide the mediation process.

11. Assure the parties of the confidentiality of the process and get the parties to agree to keep process confidential.

12. Transition to the phase where the disputing parties tell their stories.

C. Sample Outline of Opening Statement

Per the course manual on Alternative Dispute Resolution, the opening statement typically contains these points (designed to achieve the object and purpose of the opening statement as outlined above):

1. Introduction of the mediator and, if appropriate, the parties.

2. Commendation of the willingness of the parties to cooperate and seek a solution to their problems.

3. Definition of mediation and the mediator’s role: this includes telling the parties who a mediator is (or is not), what the mediator can do for the parties, and the potential outcome of mediation.

4. Statement of impartiality and neutrality.

5. Description of mediation procedures.

6. Explanation of the concept of the caucus. This is a private session the mediator may have with any of the parties. It has the advantages of reducing hostility between the parties and helping the mediator to understand the parties better, probe and uncover the real interests of parties, among others.

7. Definition of the parameters of confidentiality.

8. Description of logistics. Here, factors like time schedule, length of each session, and note-taking are discussed.

9. Answering questions posed by the parties.

10. Joint commitment to begin

Similarly, McCorkle and Reese [1] proposed the following outline for an opening statement:

i. Welcome the Parties: According to the authors, mediators begin by welcoming the parties to the mediation. At this stage, the mediator can also praise the parties for coming to the mediation table. In welcoming the parties, efforts should be made to speak to all disputants, as speaking to only one party might imply favouritism or lack of neutrality.

ii. Introductions: Here, the mediator introduces himself, and the parties do same. In introducing themselves, the authors suggest the use of titles when there is high tension between the parties. They also suggest the use of first names if an informal tone is desired.

iii. Credibility Statement: This is a statement made by the mediator to establish his qualifications, experience, and neutrality in the mediation process.

iv. Overview of Mediation:

1. Voluntary: Here, the mediator informs the parties about their ability to leave at any time. A sample statement on this is provided by McCorkle and Reese [1] which reads “As you probably know, the negotiations today are entirely voluntary and you can leave at any time.” The learned authors added that if the mediation was mandated, such as by the court (which can be done pursuant to Section 64 of Act 798), the mediator can say “Today’s mediation involves a process where you can choose to work out the issues between you, and you may or may not reach an agreement. The negotiation part of the process is entirely voluntary and does not deter you (or the courts) from pursuing other actions if you don’t reach agreement in this session.”
2. Parties create solution: Here, parties are made to understand that the mediator will not impose a solution on them, and that they will create their own solution.
3. Caucus: This is a private meeting the mediator may have with a party. By “private meeting”, we mean whatever is said to the mediator during the caucus cannot be revealed to the other party without the consent of the party that gave the information. In explaining this, McCorkle and Reese [1] advance that the mediator may say, “There may come a point in this process where I’ll want to meet private with each of you.”
4. Role of outside experts: The mediator should inform the parties that if necessary, experts may be invited to offer opinions on technical issues.

v. Explanation of Mediator’s Role:

1. Not attorney or judge: The mediator should let parties be aware that he is not there to impose a judgment on the parties.
2. Impartial and neutral: The mediator must reiterate that he is not there to take sides but to act as a neutral third-party.
3. Confidentiality (mediator and parties): The mediator must inform parties that all that he is told will be confidential, and provide exceptions to that confidentiality (such as the consent of the parties or if required to make disclosures by law)
4. Note taking procedures: According to McCorkle and Reese [1], disputants may be curious about why the mediator is writing while they are talking. Some may wonder whether what is being written would be later disclosed to other parties. It is therefore essential for the mediator to explain why he is taking the notes and ensure parties that he will destroy the notes at the end of the process.”

vi. Ground rules:

1. Respect
2. Honesty
3. Only one person speaks at a time.
4. Breaks and facilities such as bathrooms among others.
5. Time constraints
6. No personal attacks
7. Agreement to ground rules

vii. Commitment to begin

viii. Transition to storytelling. This is the second phase of mediation.

D. Sample Opening Statement:

McCorkle and Reese [1] provided the following sample of an opening statement: