For whatever reason, I’ve been talking a lot lately about joint sessions and opening statements.
I recently witnessed what may have been a game changing opening statement. It reminded me how important the joint session can be to the outcome of mediation. Certainly a “game changer” will be a rare occurrence, but the fact that it has the ability to influence decision-makers underscores the importance of this part of the process. The joint session is always valuable to me as a mediator; not only for the substantive information conveyed, but because it gives me a chance to assess the playing field, to begin assessing what’s important and not important to the parties, and consider what role each participant will play in the negotiations. In many cases, it’s the only time parties will talk face-to-face. It gives decision-makers an opportunity to assess litigants and counsel and to be assessed.
There is never only one way to do something well, but good openings always consider the audience. That audience may include your client, but not to the exclusion of the primary objective which is to influence the decision-maker by whatever substance and means available. It’s not always possible, but absent exceptional circumstances, it’s worth the effort.
Upchurch Watson White & Max