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.

Each one readily believes what he fears or what he desires.
Jean de La Fontaine (1621-1695)

Mediators often hear an attorney say, "I'm not going to waste time on an opening statement." Then, turning to opposing counsel, "You know what it's all about anyway."

Oh? He does? The client does? Opposing counsel knows what he or she believes "it's all about." It is doubtful he or she - certainly not the client - knows what their opponent considers it to be all about. And therein rests the ongoing debate over the value of opening statements by counsel.

From the clients' viewpoints, the mediator's opening comments are calculated to clarify what the process is all about, why the parties are there, and what they should be trying to accomplish.

Similarly, an attorney's opening soliloquy conveys an important message. Not only does it enlighten the mediator on the nature of the dispute (we rarely receive a written summary) but it also attempts, or should attempt to elicit a response, however silent and undisclosed, from opposing counsel and, perhaps more importantly, from the latter's client

Opening statements in mediation are rarely as detailed or impassioned as their counterparts in trial. That said, however, their goals are much the same. In addition to influencing the other attorney, either with substantive arguments or persuasive rhetoric, it behooves counsel to remember that clients are not stupid. They, too, listen carefully, either on their own volition in their own best interests, or because of the mediator's earlier urging to be attentive to what's being said. Indeed, it is not unusual for a client to question his or her own counsel during a breakout session as to the "truth" of what the other attorney has said. What is happening at that moment is a further step in the search for the truth, albeit in the form of a diminution of the client's resolve.

Do not underestimate the value of opening comments. It is tempting to regard them with the proverbial "grain of salt," given their advocative source. But their later impression, however paraphrased, on a juror is something you will never know for certain. Any attorney with more than one trial under his or her belt knows how effective a lie can be in the course of trial testimony. Different and otherwise honest slants on or versions of facts can be even more effective.

Use the mediation process for what it is worth. Prepare almost as you would for a trial. The neutral mediator may perform a valuable service, but it is the attorney who ultimately carries the day, and that is as it should be.

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