There has been a strong movement lately to get rid of Opening Statements (sometimes called Storytelling or an Opening) at the beginning of mediations. Lawyers tell me that they each understand the other side’s case, and won’t be persuaded by each other’s arguments, so don’t see the point in having an Opening. They also suggest that the Opening Statements will polarize and unnecessarily antagonize.
Many mediators agree and dispense with Openings, especially if the parties have gone through discovery.
While I agree that there are situations where an Opening is unnecessary, I think this is an unfortunate trend and that lawyers are missing an important and unique opportunity when they dispense with the Opening Statement.
Lawyers are not wrong when they say that won’t persuade each other. But that is not the purpose of the Opening.
The most important purpose of the Opening, in my opinion, is to help the other side understand the case that you will present in court that a judge could accept. In order to make concessions to you and to your client, the other side doesn’t need to be convinced that your client is right or will win, they just have to see the risk that a judge will find against them or, in their view, ‘get it wrong’. If they perceive that risk, they will make concessions. The more risk they see, the more concessions they’ll make.