Several years ago, I wrote a Best Practices article for the Associated Builders and Contractors (ABC), advising contractors approaching or participating in mediations. Below is a summary of that article — which should be helpful to any clients participating in mediations.

Be Prepared.

The three keys to success in any endeavor are preparation, preparation and preparation. A mediation is no different. The best prepared party usually gets the best result. Research your facts. Create timelines. Organize your documents. Be ready to present your case in summary form. Be prepared to answer any question you’re asked. Obviously, your goal is to convince the other side that you have a strong case. Being prepared will help your lawyer do this.

Document Your File.

Think like a lawyer. Train your employees to do the same. A well-documented file enables your attorney to quickly and accurately determine risk and fault. It will also make your attorney’s job easier, and should reduce his/her legal fees.

Have The Right Representatives Present.

It’s not uncommon in construction disputes to have laborers, foremen, managers and decision makers present at a mediation. Anticipate who might be called-on to explain or respond to an issue at the mediation. Consider having them attend the mediation. And be sure to send someone with authority to settle the dispute.

Be Courteous.

You catch more flies with honey than vinegar. This adage certainly applies in a mediation, but you’d be surprised how often people ignore that simple truth; I certainly am. Rude behavior is rarely helpful. Come to the mediation with a spirit of civility — prepared to answer questions, share information and (hopefully) resolve a disagreement.

Have Thick Skin.

Parties often experience a wide range of emotions during mediation. There’s a good chance you, your company and your employees will be criticized — maybe even insulted — at one point or another. Don’t let your pride cloud your judgment. After all, your attorney is likely to level criticisms of the other party during the mediation. You should be able to take it as well as you give it.

Be Patient.

Mediation is a process, and one that takes time. There aren’t many shortcuts, so let the process work for you. Be prepared to commit an entire day to mediation. The more time, money and energy parties invest in the process, the more they’re motivated to reach a resolution.

Trust Your Attorney.

You hired him/her for a reason. Let them do their job. They want to help you make the best decision possible, and it’s their job to access risks and probabilities of success. They’re there to protect your interest — so trust them to do it!

Be Part Of The Solution.

Eight out of ten mediations end successfully. When you do your part as a client, it increase your chances of reaching a successful resolution, and achieving your goals at the mediation.

Should You or Shouldn’t You?

I recently served on a panel of mediators at the Alabama State Bar’s annual meeting. One of the attendees asked the panel if we encouraged attorneys to make mediation opening statements. I was the sole panelist who said Yes.

I believe opening statements are important; particularly when a mediation is attended by decision-makers (IE: corporate representatives or insurance adjusters) who’ve never met the other party, or the other attorney. It’s an opportunity to make a strong first impression, and set the tone for the mediation.

Who’s In Control: The Mediator Or You?

I think some mediators resist opening statements because they want to control mediations. They’re wary of the risk that one or both of the parties will immediately escalate tensions with inflammatory statements. I believe the parties in a mediation should be in control whenever possible. When something important needs to be said, I would rather it be said in the very beginning. Why? Experience has taught me that the things left unsaid in mediations create the greatest obstacles to settlement.

Yes, Mediation Opening Statements Can Hurt, But – – –

We’ve all seen, or handled, cases where something was said in an opening statement that was so incendiary that a tone of professional civility was never restored. But in my experience, this situation is by far the exception. In the vast majority of the cases I’ve mediated, the attorneys are smart enough not to sabotage the process before it gets started.

Roughly 80% of the cases I mediate reach settlement. In part, I think, because I stress the importance of clients having the opportunity to hear their attorneys advocate their position. Clearly and without interruption.

How Long Should An Opening Statement Be?

I’ve heard excellent opening statements that lasted no more than three to five minutes. I’ve heard others that took over an hour. Regardless of the length, effective opening statements set the stage for the hard work of negotiation.

What About Opening Statements In Joint Sessions?

In a November, 2015 article published by Law Times magazine, noted mediator Allen Stitt said, “If you’re going to pass up your only opportunity in the whole process to persuade the other side, then that is an admission that you are not skilled in an area that you should be as a lawyer. I see it as the equivalent of a lawyer who is about to go into court and decides not to argue a client’s case before the judge because they might get angry. In mediation, it’s not the judge who decides; it’s the other side.”

What’s Your Mediator’s Advice? Ask Them.

Of course it’s important to formulate your own thoughts about what your client, and the opposition, need to hear in your opening statements. At the same time, your mediator should be willing to share what he/she thinks would be helpful to say, in light of the other side’s position statement. Mediators often recognize issues in position statements that need addressing in opening statements.

Bottom line: Treat opening statements as the valuable opportunity they are. Don’t surrender your opportunity to give one.