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Essential Preliminaries, Part 2

Updated: May 1, 2019

By Christina L. Scott, J.D.

Why skipping the parties opening statements is not always the right thing to do

In my experience, many family law attorneys often request to skip their opening statement and go right into caucus. This request is rarely made in civil cases. I believe this is because many civil law attorneys have already discovered the secret. The opening statements of the parties is not a time to argue, but simply to present the issues they wish to discuss from their point of view. If domestic violence has occurred or if an active TPO is in place, then going directly into caucus makes sense and is required under mediation rules.

There are other reasons parties may want to skip opening statements. Many times it’s a concern that the opposing party or attorney will say something to upset the client or attorney and shut down negotiations. This is a valid concern. However, hearing the opposing party’s arguments can be a powerful motivator toward settlement. The opening statement is often the first opportunity that clients will have to meet the opposing counsel and to hear the presentation of the issues from their perspective. Parties will get to see firsthand “how” the other attorney will present the arguments and characterize the facts. This is sometimes not easy to hear, but it will bring clients into the reality of the case. The reality is that there are always two sides. And the truth is, it’s a lot easier to hear it at mediation than at a full-blown trial. Now sometimes, hearing these statements may infuriate the parties. This is where a good mediator comes in. During the caucus, a skilled mediator will know how to use the information presented in a way that moves the parties forward and not backward. A good mediator will also help the parties realistically asses the risks of their case without the fluff. The mediator will help the parties focus on their true needs versus their wants.

When it comes to each mediation, think carefully and make sure that skipping the parties opening statements is necessary. Otherwise, you and your client may miss a valuable opportunity toward settling the case.

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