Why openings are always a good idea

Many litigators, and not a few mediators, think that openings in mediation are a waste of time.

They are wrong.

Here's why: openings are the best time for the mediator to ensure a common understanding of the issues and the terms that describe the issues. A perfect example of this came up recently in a breach of contract suit. All of the attorneys insisted on skipping openings. It was not until three hours had passed that it became clear that the parties were talking past each other. The first party viewed the word "process" as encompassing an enormous amount of work by programmers, analysts and others. The second party thought of "process" as simply pressing a button. The first party was mediating on the basis that use of their "process" completed their contractual duties. The second party came to the mediation with the view that the "process" was simply a mechanical issue of no value, and that the results of that process were the metric by which to measure.

Had the parties given opening statements, it would have been clear that they were not arguing on the same basis. A basic tenet of contract law is meeting of the minds. A clear opening statement allows the mediator to assess whether there is a meeting of the minds on what is the actual dispute.