Effective Opening

Statements
Meeting Parties Where They Are

King County Bar Association

March 13, 2014

Presenter:
Nina Meierding, MS, JD
Negotiation and Mediation Training Services
[email protected]
www. mediate.com/ninameierding
Nina Meierding has assisted in the resolution of over 4,000 disputes and has
conducted training throughout the world, including Canada, Sweden, Ireland,
England, Scotland, the Netherlands, New Zealand, and India. She has been an
Adjunct Professor at Pepperdine University School of Law for over 20 years and
Southern Methodist University for over 15 years and has also been an instructor at
the National Judicial College and the California Judicial College. She is a Past
President of the Academy of Family Mediators and has served on the Board of
Directors of the Association for Conflict Resolution and many other organizations.
She was awarded the Peacemaker Award in 1992 by the Southern California
Mediation Association for her outstanding work in the conflict resolution field and
In 2005 she was awarded the John Haynes Distinguished Mediator Award which is
an international award given annually by the Association for Conflict Resolution.

Copyright: Nina Meierding, 2014, all rights reserved. No portion of these materials may be
reprinted without the permission of Nina Meierding
 Areas to Address Prior to the Commencing Communication and
Negotiation Stages in Mediation
The following areas should be addressed prior to the commencement of the
communication and negotiation stages of mediation. Traditionally, many of these topics
have been discussed in an opening statement. However, if there is extensive pre-
mediation contact, some of these issues may be addressed prior to the session via letters,
teleconferences, etc. If the mediation is being conducted through a court program, there
may be mediation guides or handouts that are provided to parties. Some attorneys and
parties have appeared before the mediator before – for others it is there first experience
with this specific mediator. Some parties are veterans of the mediation process, for
others it can be a new and confusing process. Therefore, it is important that the mediator
have multiple opening statements that are customized to the particular clients.

Logistics: Seating arrangement – who chooses and why

Joint and/or separate session openings

Introduction and background of mediator

Definition of mediation and mediator’s role

(Differentiate between your “other” job if relevant –
lawyer/therapist/accountant etc.)

Impartiality of mediator

The goal of self-determination in decision-making

Addressing voluntary v. mandatory participation

Commendation v. commiseration

Discussion of behavioral guidelines or guiding principles

Description of the process and stages

Confidentiality (its parameters and limitations)

Disclosure

Use of separate sessions (specific caucus confidentiality guidelines)

Costs and fees

Timeframe and pacing

Confirmation that parties have the authority to make an agreement

Commitment to begin

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Copyright: Nina Meierding, Negotiation and Mediation Training, 2014, all rights reserved
Questions to Consider as to When, Where, and How an Opening Should
Be Conducted

What is the stage of the conflict?

Latent conflicts – Underlying tensions have not fully developed and escalated into
highly polarized conflict.

Emerging conflicts – The parties are identified, the issues are defined, and many issues
are clear. However, workable problem solving has not occurred.

Manifest conflicts – Parties are engaged in an active and ongoing dispute, may have
started to negotiate and may have reached an impasse.

Conflicts can be in substance (the subject matter or the deal itself), beliefs (morals and
values), interests (needs and motivations), and process (how something has happened.)
Conflicts in each of these areas impacts process decisions.

What is the relationship between the parties?

Lineal - A collective (group focused) relationship that has continuity over time
(sometimes generations). There is respect for elders in the group and oftentimes power
dynamics are at play.

Collective - The relationship is group focused, but not lineal. The group may have
formed relatively recently. For example, a board, a class, a political group etc.

Individualistic - The party is self-directed and self-motivated. This may mean the party
is more self-protective and more competitive. The group is seen as a resource that can
give the party what he or she wants.

Duration of the relationship - Do the parties anticipate that they will need to work
together after the mediation is complete or is this dispute a “one-shot” deal?

Continuing relationships can occur in all subject matter areas, so it is important not to
stereotype certain areas - for example, a common but inaccurate belief is that family
mediation cases have long-term relationships and commercial cases do not.

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Copyright: Nina Meierding, Negotiation and Mediation Training, 2014, all rights reserved
 What is the level and type of emotion?
Constructive or destructive emotion - Not all emotion or conflict is destructive.
Conflict and high emotion can lead to creativity and true understanding. However,
destructive emotion can be hurtful (emotionally and physically), can cause reactive
devaluation and destroy the relationship and the mediation process.

Negative power imbalance - Different levels of power are a natural dynamic in

relationships, however the mediator needs to be aware if the power is used destructively.

Reactive devaluation - Some parties have strong reactivity to the other party or the other
attorneydemonization or devaluation of the other’s perspective based on who they are

What are the wishes of the parties and/or their attorneys?

What are the strategic (not stylistic) reasons for the parties’ requests regarding the
opening?

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Copyright: Nina Meierding, Negotiation and Mediation Training, 2014, all rights reserved
 Possible Attorney Needs in Negotiation or Mediation

In relation to own client

Protect client’s legal rights
Protect client from him or herself - insuring informed decisions
Manage expectations
Be seen as an advocate by and for client
Acknowledgement and validation by client as to services rendered
Ultimate acceptance by client of responsibility for any decisions made
Payment of fees
___________________________________________________________
___________________________________________________________

In relation to opposing client

Be seen as a worthy adversary and effective negotiator by opposing client
Ability to assess credibility, effectiveness and determination of opposing
client
___________________________________________________________
___________________________________________________________

In relation to opposing attorney

Demonstrate excellent understanding of facts and law
Demonstrate expertise of subject matter and process
Demonstrate effective negotiation skills
Demonstrate willingness and ability to litigate if case does not settle
Evaluate effectiveness and determination of opposing counsel
___________________________________________________________
___________________________________________________________

In relation to the mediator

Retain control over client; insuring participation at a level of comfort of client and
attorney
Indicate cooperation and willingness without being too accommodating or too
competitive
Protect dissemination of certain information – insure confidentiality of separate
sessions
___________________________________________________________
___________________________________________________________

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Copyright: Nina Meierding, Negotiation and Mediation Training, 2014, all rights reserved
 Language in Opening Statements

Cultural meanings, associations, and nuances vary across cultures and may be lost in
translation or through cultural and individual filters.

Most “slang” does not translate with the same meaning.

For example, “stuff” (meaning a collection of things), “eating at you” (bothering you),
“ID” (identified), “fill this in”, “knows zip about that”, “check it out,” “let’s get
together,” “step in their shoes,” and many other phrases.

In addition, many “terms of art” do not translate well. For example, “dispute,” “think,”
“facilitate,” “interaction,” “resolve,” “self-determination,” “negotiate” and even
“mediate.”

The level of formality used in an opening may also need flexibility from the mediator.
Formality of speech often correlates to power distance and/or the level of respect between
the parties or between the parties and the mediator. In addition, the level of formality
may differ from how it is expressed within the family/in-group and how formality is
expressed with “outsiders”

Some people are more linear and time conscious (monochronic) and others are more
multi-processing and use relational time (polychronic.) People who are more linear may
want or need more structured, time-framed opening statements. People who are more
polychronic may find that type of opening statement as rigid and inflexible.

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Copyright: Nina Meierding, Negotiation and Mediation Training, 2014, all rights reserved
 Opening Statement Exercise

 Remember “the beginning impacts the end” and the opening is still part of your
“beginning.”

 Think about your opening statement and the words that you use.

 Think about the timing – not only how long it takes, but the pacing, the format,
and the pausing.

 Think about your word choice. Using the word “perspective” instead of the word
“position” or the word “share” instead of the word “state” can make a difference
in how the process is seen, i.e., more facilitative or more evaluative.

 Think about how your opening is also a way to asses parties’ reactions to you,
how you present information, how they process information etc.

 Practice your opening statement with several other professionals – but also with
lay people.

 Be open to constructive feedback.

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Copyright: Nina Meierding, Negotiation and Mediation Training, 2014, all rights reserved