An opening statement is a critical tool in your mediation toolbox, but attorneys often choose to waive their opening statement. Such a choice results in missing the opportunity to set the tone for a more meaningful mediation. An opening statement will almost always raise your chances of a settlement that aligns with your client’s goals. Because you are making them directly to the other party, opening statements are the best chance to explain your perception of the facts and the applicable law. It might also be the first time the other side has had a chance to consider seeing the strength of your case and the consequences of not settling.

The possible benefit of giving a powerful opening statement is very high. In contrast, the cost of giving an ineffective one rarely spells doom for your client.


  • Be polite and respectful in both tone of voice and demeanor.
  • Assure the other side that your comments are not meant to upset them. You just want to explain to them how you and your client see things.
  • Acknowledge that this is your perspective of the law and the facts. While their attorney may not agree, note that this is how you intend to present the case if it goes to trial.
  • Explain the likely outcome of the case if you succeed.
  • Assure the opposing party of your client’s willingness to work towards a successful settlement.


  • Don’t say anything derogatory about opposing counsel. I once mediated a case where an attorney told the opposing party that their attorney was not competent to handle that type of case. I had to spend over an hour talking them off the ledge before they would consider any settlement offer.
  • Don’t brag about your abilities or successes. You are not going to intimidate the other party. Your reputation will precede you, and they will already know about you. And if they don’t already know about you? They’ll learn quickly and well if you let your opening statement and overall handling of the case speak for you. Actions speak louder than words, after all.

I hope you find these ideas helpful when planning your mediation. I offer both in-person, online, and hybrid mediation services and would welcome the opportunity to mediate your cases.

Why do I need to prepare a mediation summary?

Providing a summary to your mediator is one of the most valuable tools you can use to make sure that your mediation starts—and stays—on track. There is no set format. Your summary can be a formal, written document; an informal email; or even an oral presentation to the mediator.

Make the most of your time—you are paying for it, after all!

The first benefit of providing a summary to your mediator is that it maximizes the time spent. Without a summary, a mediator will usually spend their first hour getting up to speed on the case. In fact, they might continue to play catch-up for longer.

Refresh and Finesse

Preparing the summary gives you an opportunity to refresh your memory on all the intricate details of the facts, claims, defenses, and applicable law in the case. It also helps you to get to know your case better and can help you fine-tune your mediation strategy.


In mediation, good advocacy has a very specific focus: you want the other party and their attorney to see the advantages of settling rather than proceeding to trial. Preparing the mediator to effectively advocate your position is essential. As with other aspects of advocacy, you should present your summary as having a story with a theme. This story should provide humanizing context for your client’s actions and motivations in this case.

Your summary should also aim to give a preview of your case’s strength. It should include a realistic assessment of both sides’ risks in going to trial. Discussing strong legal arguments in your favor and enumerating the evidence you have for your case gives the mediator the tools to meaningfully express to the other side that you are likely to win at trial. Similarly, an honest discussion of legal arguments that cut against you can show your good faith to the other side and present opportunities to address those arguments on your own terms.


You do not want a key issue to come up for the first time too late. Writing the summary prepares you and it prepares the mediator. It also helps avoid antagonizing or exasperating either the mediator or the other party.

What Should Be in Your Summary


You’ll want to make sure your introduction of the facts and applicable law is succinct. You want to highlight each of the important issues in a way that gives your reader just enough information to appreciate what’s happening. Also, note where the case is in the legal process—for example, has either party conducted any discovery? What negotiation attempts has each side made? Make sure you also indicate any details that you think might be preventing a settlement from being reached and any important dynamics such as personality conflicts.

Relevant standards

You should discuss objectively verifiable standards in your summary to avoid making it look like a wish list. This part of the summary is where you would include applicable statutes and case law that help support what you are asking for.

Similarly, it is critical that you have evidence to back up all the assertions in the summary.

When it comes to requesting relief, dollar amounts can be off-putting or inflammatory to the other side. It is, however, beneficial and appropriate to signal in a summary any non-economic concerns you might have because it allows all parties to the mediation to plan for addressing them.

If you do not provide a summary, at least do this:

  • If you are not going to prepare a mediation summary, you should at least give the mediator
  • A copy of the Complaint, Answer, any relevant motions and respective orders that would give the mediator insight into the dispute between the parties;
  • Copies of any contracts, trusts, wills, applicable appraisals, expert reports, medical records, and/or accountings that are relevant to the disputes between the parties; and
  • Copies of any pre-mediation settlement communications.

More Mediation Tips

I hope you find these ideas helpful when planning your mediation. I offer both in-person, online, and hybrid mediation services and would welcome the opportunity to mediate your cases.

The COVID-19 Pandemic has given us an opportunity to re-invent the way we practice law. We may try cases differently, and we may choose to meet with our clients differently. We might even get the chance to mediate cases differently. Nevertheless, right now many of us must hold much of our mediation online. Therefore, we need to ask, “How can I set myself up for successful online mediations?”

Consider these suggestions for making your online mediation experience more enjoyable and productive:

Do a Trial Run

Conduct a pre-mediation conference with your client online well in advance of the scheduled mediation, using the same platform that will be used by your mediator, typically ZOOM.

This will not only help you and your client develop a mediation strategy, you will also identify any technology issues ahead of time.

Plan to Go the Distance

Encourage your clients to think about how (and you as well!) they can minimize distractions by anything not related to their mediation.

Have snacks and drinks readily available and make a plan for lunch—most mediators do not adjourn for lunch.

Prepare Needed Documents

Make sure your clients have in their possession all the documents they might need during the mediation, printed and ready to go.

I hope you find these ideas helpful when planning your online mediation. I offer both in-person, online, and hybrid mediation services and would welcome the opportunity to mediate your cases.

Bart publishes his mediation newsletter monthly. The newsletter provides guidance for what goes into a successful mediation. In it, Bart will sometimes run a series and will sometimes have standalone newsletters. He currently opens with a series featuring mediation tips for specific situations and issues. When you sign up for the newsletter, you should automatically receive this series first. If you do not, please let us know by clicking here!

Each mediation presents unique challenges. After all, each one showcases different personalities, conflicting agendas, and contrasting economic interests. If they did not, there would be no need for a mediator!

Although each mediation is unique, as a premier Emerald coast mediator, Bart has chosen each newsletter’s topic to help attorneys develop the broader tools, techniques, and philosophies to maximize their chances for success. Having worked across many conflicts, he has long kept track of what attorneys might do to make their mediations as successful as possible.

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