• Negotiation is "a communication process used to put deals together and to resolve disputes."
  • Mediation is "assisted negotiation."

So, the basic role of mediation is to assist with communication among counsel and client.

Parties cannot possibly reach a "mutually acceptable" agreement unless they understand each other, the issues in dispute, interests of both sides, and the alternatives and solutions being considered. Such mutual understanding mandates communication, which is afforded throughout the mediation process.

Communication in mediation usually begins with Opening Statements, first by the mediator, then by each counsel (or client). The mediator opening usually covers:

  • Introduction of parties and others at the table
  • Description of the process (voluntary, confidential, neutral, private meetings, ground rules...)
  • Logistics (time constraints, breaks...).


When the Mediator Opens...

  • Assess the mediator’s tone, style, process, and expectations, then try to work in harmony with the mediator.

When Counsel or Your Client Opens...

  • Balance between persuasion and aggression

Show that you would be a reasonable settlement partner but a formidable enemy

  • Focus primarily on the decision-maker on the other side as the audience
  • Focus on those key issues that will drive the settlement
  • Let the client lead or help in presenting the opening (if they would be effective)
  • Include in your opening...

A concise statement of what the basic dispute is about

A concise statement of claims or defenses, and key facts

Areas of agreement as well as disagreement

A statement of willingness to search for resolution

  • Tell a "cogent and compelling story" - forest, not trees
  • Use visual aids (e.g. chronology chart, pictures)

The best organized and presented opening often guides the entire mediation


When the Opponent Opens...

  • Listen for new information, their sense of the key issues, strengths and weaknesses
  • Ask clarifying but not argumentative questions at the appropriate time - don’t interrupt
  • Don’t over react and destroy the potential for resolution, stay credible

After Openings, communication should remain organized, so help the mediator shape an agenda

  • List the issues - What is this case about? What questions must be answered to resolve it?

Reach a finite yet comprehensive list of issues to your client’s satisfaction

Allow the Mediator to frame issues for resolution, not for competition

Include "non-legal" issues

  • Organize the agenda logically (e.g. in the order identified, in order of importance, alternate sides, easy item first, building blocks, build packages by trade-offs...)

In advocating for your client through this communication phase...

  • Use...

    Reports (verifiable facts)

    Inferences (not directly known, but based soundly on observed facts)

  • Avoid...

    Judgments (based on personal opinion and conclusions about facts -- judgmental statements "stop listening and thought" by your opponent -- and you need the opponent to listen and think about your case)

    Misleading the mediator or opponent about your true interests -- this can backfire

    Behavior that might sour the opportunity to reach resolution

  • Expect and help the mediator use these key communication techniques...

Effective Questioning - Open, closed, probing, checking, reflective, leading, hypothetical, provocative, assertive questions

Reframing - To provide different perspective, more understanding, clarity, trust, depersonalization and diffusion of tension, summarization, focus on the future and solutions instead of on the past and blame, focus on interests instead of just positions, and to balance and mutualize statements

Active Listening - Just because the mediator acknowledges, understands, and shows empathy with the opponent, do not assume bias.
  • Be sure the communication helps you and your client understand these:

Strengths and Weaknesses of both sides

Alternatives to an agreement (What happens if we don’t reach agreement?)

Perspectives (What is driving each side? What does each need? Why?)

Interests (Yours, theirs, mutual, which are most important?)

Options (Brainstorm - separate inventing from evaluating or deciding)

Negotiation Opportunities (Consider both sides’ interests, use standards/formulae...)


copyright 2001, first mediation corporation