Many mediators agree and dispense with Openings, especially if the parties have gone through discovery.

While I agree that there are situations where an Opening is unnecessary, I think this is an unfortunate trend and that lawyers are missing an important and unique opportunity when they dispense with the Opening Statement.

Lawyers are not wrong when they say that won’t persuade each other. But that is not the purpose of the Opening.

The most important purpose of the Opening, in my opinion, is to help the other side understand the case that you will present in court that a judge could accept. In order to make concessions to you and to your client, the other side doesn’t need to be convinced that your client is right or will win, they just have to see the risk that a judge will find against them or, in their view, ‘get it wrong’. If they perceive that risk, they will make concessions. The more risk they see, the more concessions they’ll make.

So your Opening should be focused on what arguments you would make in court, what evidence you’ll be relying on, what law you’ll use to convince the judge that your client could win, not on why your client is right or why your client will win in court.

The distinction is subtle, but important. For example, if there is a credibility issue in your case, your Opening should not focus on the fact that your witness is telling the truth, but rather that your witness is believable. A lawyer at a mediation I was at said recently, “I wasn’t there; I don’t know who’s telling the ‘truth’; but I do know that my witness sounds believable. If a judge believes my witness, we’ll win the case”. The issue in a credibility case is not who is telling the truth, but whom a judge will believe. If the other side believes that your side’s witness could be believed (even if they are convinced that your side’s witness is lying), they may perceive a risk and see the benefit of making compromises.

And that’s where the mediator comes in. If lawyers present in the way I’ve suggested, the mediator can use what was said in caucus to discuss with each side the risks of a judge finding against them. The mediator doesn’t have to focus on who will win; just on the risk of a judge finding against them based on the arguments presented at the Opening.

If you present the arguments you’ll be making as opposed to arguing that your client is right and will win, that will significantly remove the risk of polarizing and antagonizing. After all, you are just presenting what you will be arguing in court, not suggesting the outcome in court. There’s nothing for the other side to argue about because you’re not saying that your arguments are the ‘objective truth’ or the ‘fair result’ (two of the common antagonizing themes in Openings), you’re just telling the other side what you’ll be arguing.

So in determining whether an Opening would be helpful, you should ask yourself whether the other side’s lawyer has explained your case to his or her client as well and as persuasively as you could. If the answer is yes, there is little value in the Opening. I’ve yet to have a lawyer tell me that the answer is yes.

Allan Stitt

Allan Stitt is the President of ADR Chambers where he mediates and arbitrates. He also teaches ADR with the Stitt Feld Handy Group.

Democrats and Republicans are dead locked over how to raise the country’s $14.3 trillion (U.S.) debt ceiling before an Aug. 2 deadline. With both sides at an impasse, the Toronto Star asked Allan Stitt, a Toronto-based mediator and arbitrator who lectures on conflict resolution, for some insight into high-stakes negotiations.

Q. Is this one of the worst examples of a stalemate that you’ve ever seen?
A. “It’s one of the worst because the impact is so severe,” Stitt said. The gridlock has caused the U.S. dollar to fall and threatens to damage the country’s credit rating. But, Stitt said, stalemates like this happen all the time. “They are very common because both sides are trying to out-think the other side in terms of what they’ll be willing to do and when they’ll be willing to cave.”

Q. What drives a situation like this?
A. Stitt said it often gets to the point where both sides could theoretically say Yes to what the other side is offering but each thinks they can cause the other side more pain by holding out. “They believe that if (they) holdout a bit longer, the other side is going to cave,” he said, adding that in moments of honesty, they might admit they would be better off accepting what the other side has to offer.

Q. So how do you break through that?
A. Mediators always look for ways their clients can save face while getting what they really want -rather than what they say they want - without forcing them to go to the other side’s position. That’s the best-case scenario and a solution that’s so often open to people and they don’t explore it,” Stitt said. More commonly, both sides end up making concessions until they hit middle ground. “People start to realize that they’re hurting everybody and in this case, they’re hurting an entire country by continuing to be obstinate.”

Q. Is there any way for the two sides in the U.S. to save face?
A. “Definitely,” Stitt said, but they have to get creative. If both sides could get together privately, with a promise that discussions would not be leaked to the media, they could talk honestly about what they really want and need.

Q. Do you think it’s more likely they’ll start making concessions instead?
A. “Unfortunately, the practical reality is they just start giving on issues,” he said, adding that the real problem is posturing from both sides. “Nobody really knows which issues are really important to either side because they’re all pretending that every issue is extremely important.”

Q. What are some of the other classic mistakes made in negotiations?
A. “They get caught up in their own rhetoric” Stitt said.” Over time, they become so entrenched in their positions that it becomes a matter of principle and they’re unwilling to budge, he said. “That’s really what’s happening here”.

Q. This is a pretty juicy negotiation. Would you like to be stuck in the middle of this?
A. “The truth is, I would,” Stitt said. “Maybe it’s the eternal optimist in me but I do believe that there are creative ways to overcome some of these difficulties. Sometimes you need someone in the middle to take the pressure on them instead of on the parties.”