If it is true that first impressions are so important, it is also true that each word chosen by the mediator during the opening statement – to explain the purpose of mediation, his or her role, and how mediation works – may have a lasting (positive or negative) impact on the parties. As a result, depending of whether the parties like or dislike what they just heard by the mediator in the first 5 minutes, their mediation is likely to start off on the right or wrong foot.
For that reason, in my practice I prefer to tailor the opening statement, depending on the parties’ case, background, and experience.
For example, when mediating commercial cases with attorneys, I use words like mediation, negotiation or settlement. But when mediating with individual parties (e.g. in a family case), I prefer to avoid those words. Why? I figure that:
- Most people who have never participated in mediation before associate the word “mediation” with “compromise” or “giving in” – nothing to be particularly proud of.
- Unlike attorneys, sales reps or managers, most people don’t consider themselves as negotiators. And therefore, as soon as the mediator says the word “negotiation”, they fear to end up with a bad agreement, and wonder whether they should have come to mediation with an attorney.
Thus, during my opening statement in a case only with attorneys, I might say:
We are here to give you the opportunity to talk, hear what’s on your mind, listen what’s on the other person’s mind – and find out if there is any chance that you can negotiate a mutually acceptable settlement.
On the contrary, in a case with just husband and wife I prefer to say:
We are here to give you the opportunity to talk, hear what’s on your mind, listen what’s on the other person’s mind – and then we’ll take it from there.