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Opening Statements

Role Division
o The counsel deals with the technicalities of the problem whereas
the client deals with the factual matrix of the problem.
o You should not interrupt each other.
o Do not whisper with each other.
o The communication should be subtle.
Counsels Opening Statement
o The counsel introduces the client: (i) name (ii) what he does (iii)
why they are here on the mediation table.
o What the counsels role is during the whole mediation session: (i) he
shall be dealing with the technicalities i.e. the law involved in the
problem and probably if any calculations or numbers pop up during
the session (ii) he is present in the mediation session merely in an
advisory capacity and the power to take decisions rests with his
client and his client has full authority to settle in the mediation
o Law should not be used unless stated in the general information.
o Point out to the general facts of the problem without getting into the
o I think it is my client who is in the best position right now to explain
what he is going through and what are the ground realities in the
Clients Opening Statement
o Summary of the whole problem: (i) issues that the client has (ii) the
problems that he has been facing (iii) what solutions or what
position does he look to be at after the end of this session.
o Play the facts according to how he wants the situation to be.
o Point out to the strengths of his problem.
o What he shall be speaking shall be out of a general rationale and
general logic.
o Set the tone of the whole mediation session.
o There are certain facts and issues with respect to which both the
parties have to take a positional stand and this is something a client
is supposed to point out at the very onset has to point out in his
opening statement.
o Sir while we agree that we might be flexible enough to let go of
thing A but the subject B is something that we are not willing to
compromise on at all.
o Pass the focus to the counsel again who shall thereon set the
agenda and issues that need to be discussed in the mediation
General Demeanour
o Counsel must take notes during the session.

Closing Statements

Acknowledge the contributions given to you by the opposite team and the
Thank the mediator for putting up with you over the course of the last two
Acknowledge the fact that mediation is not easy and that it is an immense
burden placed on them to be unbiased and to be fair and to maintain
confidentiality regardless of how much information is given to them.
As a counsel you must summarize in a business-like fashion all the
progress made over the course of the session in case you have reached an
agreement and if not then talk about all the things you have discussed
over the course of the session that might make it easier to reach
resolution at a later date.
As a client you will be thanking the opposite party for meeting you halfway
and for being okay with suggestions that might not have been to their best
interests but is the easiest way to resolve the conflict that both parties
have faced. You are essentially going to talk about how it is so much better
that you have chosen mediation and the results that have come to you as
a consequence of the mediation session than it would have been if you
were to say take it to court or to essentially let the matter simmer in bad
blood over the course of time as opposed to dealing with it in a
constructive manner.
Acknowledge the efforts made by the other party to make the session as
fruitful as you have done. It is also a good idea to make comments on the
things that the other party has said that have been particularly fruitful and
if you are the second party giving the closing statement it makes sense to
incorporate what the preceding party has said in order for the closing
statement again to look like a labour of attention.
As a counsel acknowledge the details that have been laid down and make
sure that you stipulate that a contract will be done in the future. In case
there are details that have not been threshed out say that you are going
to set up another session with them to take this forward. This is essentially
a gesture of good faith.
If there is a lack of time it makes sense for the parties involved in that
mediation session to acknowledge then that there are certain details that
have not come forward but due to the nature of the session itself
confidentiality is a mandate but you will be interested in taking it forward
through another session.