Examples of Opening Statements When Starting the Mediation Process

Opening Statements in Mediation

Introduction

The mediation process begins with opening statements. The mediator will generally get the ball rolling by introducing him- or herself. At this time, it is advisable to set the tone for the proceedings. Mediation can be extremely tense and stressful for the parties involved, so it is helpful to try to create a positive, relaxed atmosphere where cooperation is encouraged. All parties should be made aware that mutual respect would be expected, as there should be a desire from all involved to reach a resolution.

Objectives

In this article, you will learn how to facilitate the opening statements of the mediation process.

What should the mediator's opening statement include?
How can you help create an effective environment for the mediation?
What should the parties' opening statements include?

Setting the Stage for Mediation

The mediator plays several roles in the preparation process, and one of the initial jobs will be to educate the complainant and the respondent. This means taking some time during the opening statements to explain what your role will be throughout the mediation. After defining your role, you can also explain their contributions to the proceedings. Both of these tasks help the mediator to create a sense of credibility with the parties. They will see you as being knowledgeable and authoritative.

Once the parties have a reasonable expectation for what mediation can do for them, it is time to lay out the agenda. The mediator may provide it in written format or may just explain it to everyone present. In doing so, he or she eliminates some of the worries that may exist. Once both parties realize that there is a plan of attack and that the items that are important to them are included on the agenda, it will lessen the anxiety.

While there are definite advantages to being seen as an authority in the mediation process, it can also be beneficial to create a rapport with the parties involved. If they feel comfortable with the mediator, they are more likely to work toward a positive outcome. Foster this positive approach by establishing a pattern in which the parties are agreeable and positive. One simple method for doing this is to ask questions that you know will elicit an affirmative answer.

There will also be procedural considerations to keep in mind, and sharing these with everyone will continue to establish you as an authority, as well as to lessen anxieties. Let them know that you plan to take notes so that you can keep your thoughts straight, and offer pens and paper for them to do the same. The mediator's training, as well as the needs of the clients, will come into play when determining the formality required for the proceedings. In cases with extreme hostility, for example, it may be necessary to stick to a much regimented format to keep the entire process from stalling.

Creating these expectations will make your job easier and will improve the chances for a successful mediation. Once the ground rules have been set, the next step is to ensure that both parties are aware of what is expected from them. To drive this point home, obtain a commitment from all involved that they intend to mediate in good faith and to come to an acceptable outcome.

Before moving on to the parties' opening statements, be sure to ask if anyone has any questions. Again, answering these in advance will help to lessen anxiety and will show that you have everyone's best interest in mind.

The Parties' Opening Statements

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Once the mediator has finished offering his or her opening statements, it is time for the parties to give theirs. To prevent controversy over which party speaks first, the protocol will generally be for whoever filed the claim to start. The mediator will ask him or her to begin. As a mediator, it is important to know that the person who speaks first will often have a bit of a psychological advantage, so keep this in mind when working through the case.

The person who originally filed the claim will often be referred to as the "complainant." He or she will talk about the concerns that have brought everyone into the mediation process in the first place. The mediator should listen closely and take notes. It is then the respondent's turn to speak. Rather than simply responding to what the complainant has said, this is actually the time for him or her simply to explain the issues in his or her own words. It may be difficult to keep this person from going on the defensive, which is why it was important to build that earlier rapport and sense of trust in the process.

The opening statements are an opportunity for everyone to lay out the basic premise behind the concerns and issues of the case. It is not a back-and-forth conversation; rather it is a presentation of ideas. For that reason, the mediator does not jump in to ask questions at this point in the process. Instead, he or she should take notes regarding any questions that may need to be answered or ideas that need to be clarified.

While the parties are speaking, they should clearly understand that you are listening to what they have to say. To do this, make sure you are offering a reasonable amount of eye contact and that your facial gestures and body language do not give them the impression that you are bored. Be careful about nodding, as that may be interpreted as agreement. It is acceptable to nod to show understanding, but make sure that you do so for both parties.

Once the mediator and both parties have given their opening statements, it is time to move on to the next portion of the proceedings.

Open Session

Introduction

The open session is the portion of mediation that most people think of when they imagine the process. It is the opportunity for each side to offer up its point of view. The conflict will be outlined, along with insights into why the two parties have come to such an impasse. The mediator's job is to remain neutral while hearing both sides, to help uncover hidden problems, and to make both parties feel comfortable to make their voices heard. Additionally, the mediator must ensure that the proceedings remain civil and productive and may need to use a number of skills to make this happen.

Objectives

In this article, you will learn how to facilitate the open session portion of mediation, as well as how to use a caucus to the group's advantage.

What is the purpose of the open session?
How and why should you use a caucus?
What is the mediator's role in the open session?

Facilitating the Open Session

The opening statements of the mediation process serve a number of purposes, and they are therefore necessary before moving on to the open session. For example, they allow the mediator to explain clearly the process to the parties. In addition, they help to show the mediator just how far apart the parties are on the issues. He or she may discover that there is more common ground than the complainant and respondent realize, or that there is an extensive amount of work that needs to be done.

The next step in the process is to move into the open session. This may also be referred to as a "joint discussion" because it allows, for the first time, the mediator and the parties to interact with one another. A great way to get this stage of the process started is for the mediator to recap and summarize the opening statements that were given by each party. If he or she has any questions relating to those opening statements or need clarification, this is the time to bring up those issues.

By carefully choosing the issues to examine further, the mediator is in a position to redirect the parties' attention from being "right" or "wrong" to focus on what their interests are in the situation. One or both of them may discover that they can still get what they need out of the process without "winning" or "losing."

If the parties are working well, then it is appropriate to allow them to discuss the issues directly, with the mediator keeping more of a distance. The decision about how much to allow them to interact should be based on a number of factors.

Are they interacting respectfully and actually listening to one another?
Are they keeping their emotions under control?
Do the parties have the ability to move through the process with less guidance?
Is it likely that they will be able to reach a positive resolution with less input from the mediator?

If the parties are unable to communicate clearly with one another, then the likelihood of them coming to a positive resolution is lessened, which means that it is better for the mediator to remain more fully involved in the proceedings. He or she will be able to help guide the conversation and to keep the parties from being sidetracked. The mediator can get the conversation back on track, can help keep the parties moving forward, and can help maintain a sense of civility in the proceedings, if necessary.

Using the Caucus

While it is advisable to work as many things out as possible within the group, sometimes it is necessary for a caucus to take place. A caucus is simply a meeting between one of the parties and the mediator. The other party will not be included in the meeting, and anything discussed there that was not previously brought up in the open session must remain confidential, unless explicitly stated otherwise. Before returning to open session, the mediator should review with the party what information can be disclosed and what information needs to remain confidential. It is permissible for the party to later decide to reveal that same information; rather, it is only the mediator who must keep it confidential.

A caucus may be needed for one of several reasons. In some cases, it is simply because the parties need some time apart to calm down and refocus their efforts. A caucus is also used so that one of the parties can discuss confidential information without the other party listening. This may pertain to any aspect of the case, including potential settlement options. He or she may also be able to "save face" by telling the mediator of compromises that could be made without bringing them up in front of the opposing party.

Finally, a caucus can also be called for the mediator's benefit. If he or she needs to take a break from a tense situation, this is an acceptable method. After all, the mediator needs to remain calm, and this can be difficult in somewhat hostile situations. In addition, there may be cause to do some research or to get advice from appropriate resources.

In some cases, the open session may be completely omitted in favor of having each party in a separate room with the mediator moving between the two. This strategy may be employed when it is impractical to have the parties meet due to an inability to be productive when in the same room.

The Mediator's Role

Whether in an open session, a caucus, or separate sessions, the mediator plays an extremely important role in the search for a solution to the parties' problems. One of the most crucial aspects of the job is to remain neutral. This can be a difficult thing to do, but the success of the mediation hinges on your ability to do your job in an unbiased manner. While remaining neutral, the mediator will work diligently to truly understand each party's position on the issues.

In addition to understanding each party's point of view, it is also necessary to determine what they truly want from the process. While it is important to learn what the individuals desire, it is often helpful to discern what they truly need, as well. It is common for a mediator to discover that both parties can have their needs met once they have been able to better define what it is they are seeking from the process.

It is also the mediator's job to be aware of any hidden agendas that one or both parties may have in regards to the process. This can include both the consequences of getting what they want and the consequences of not getting what they want. If there is a hidden reason for a certain behavior, it makes it harder for the mediator to determine what is happening. Use your skills to help the parties get to the heart of their desires and behaviors, and you will be more successful in helping them reach an acceptable outcome.

The open session provides an opportunity for the parties to air their concerns, and it is a chance for the mediator to help them identify exactly where the problem areas lie. In most cases, it will not be a matter of just one problem, rather there will be several smaller problems all tangled together that are creating the contentious situation. You will need to help them untangle these issues so that you can focus on each individually to create steps in the process of finding a solution. The next session will walk you through how to facilitate a brainstorming session. You will need to have worked with the parties to determine the underlying issues to solve them systematically to reach an overall positive resolution.