More often than not, lawyers opt out of opening statements in
mediation for a variety of reasons. Common rationales include:
opening statements will only heighten emotions and negatively
impact negotiations; the parties already know the key issues and
mediation time is better spent on negotiating settlement terms; and
we don't want to disclose our litigation strategy before
depositions or a decision on one or more issues.
When opposing counsel suggests parties should opt out of opening
statements in mediation, a common reaction (that I am guilty of) is
to agree. Opening statements require substantial time and
attention, including rehearsal, and the presentation itself can be
stressful. By skipping the opening, lawyers can avoid that pressure
and preparation. Taking a pass is an easy out. However, does that
make it a good idea? Should it be the rule, rather than the
exception? Is forgoing the opening statement in the client's
best interests?
