Ed Ahrens, Jr., Esq. writes monthly thought provoking Editorials on mediation. These views are Ed's and do not necessarily reflect those of Florida Mediation Group.

Ever been tempted to yell that at counsel across the table during his interminable opening statement? Sometimes the irritation is warranted; other times maybe not.

How long should an opening statement be? Can it be too long? Too short? Yep and nope.

After all, attorneys are paid for how they write and how they speak, and, since mediation is primarily an oral session, speak they will. If too little is said, relevant factual details and effective arguments can fall short, allowing the other side to fill in the gaps. If opening statements are too long, eyelids begin to droop and attention lags.

The key is in the nature of the case, which states the obvious. A severe injury with multiple medical services and serious questions of liability will justify a thorough opening. And blowups of injuries and accident scenes can go a long way toward the participants' and the mediator's understanding of the dispute.

That said, attorneys adept at achieving the maximum effect in the mediation process are careful to leave some details for caucus and, perhaps, later disclosure. Timing in the sharing of information in a mediation can be as critical as that required of a tightrope walker.

The routine fender bender or minor slip and fall (if there are such things) usually can be truncated to suit the lack of complexity and to control the cost of mediation. Despite my urgings, I have seen attorneys harangue over what eventually turns out to be a $2000 claim and run up a mediation cost way out of proportion to the stakes involved.

I've also had lawyers try to say nothing, other than, perhaps, "He [opposing counsel] knows what's involved. Let's get to the money." Uh, uh. The mediator expects the scene to be set by both sides. Otherwise, don't waste everyone's time with a pointless proceeding by declining to bring the mediator into the process.

I know I've said it so often before, but it bears repeating. There is no substitute for preparation.

Considering the opportunity offered for an early settlement of a dispute that might otherwise hurl the parties into an expensive, stressful, greatly delayed and uncertain trial process, mediation should never be taken lightly. If either side arrives at the proceeding unprepared or underprepared, both sides are penalized. And the mediator is frustrated in his or her efforts to help resolve the dispute.

The guideline for a trial attorney should be that which he follows in preparation for trial. In that way, the length of an opening statement will be just right and will effectively promote an early and reasonable settlement, thus avoiding an unnecessary trial.

So, say what you will and don't say what you won't, but, if you get too long winded, know when to zip it up.

Talk back to Ed
regarding this article

List More Edsitorials
Print this Page

Web Development by