3. The parties’ opening statements
Each party is then usually invited to make an opening statement. This allows the parties to explain their views of the dispute and what outcome they hope to achieve.
The parties are usually given equal time to speak. The order of speaking may be agreed by the parties. Commonly, the party who initiated the claim or dispute will speak first, but this is not a fixed rule.
Because the mediator and the parties may already have received position papers, statements of issues and supporting documents before the mediation, the opening statement does not usually need to describe the entire case in detail. It may be more useful for each party to highlight the major points, explain what matters most to them, and identify any new information that may not previously have been understood by the mediator or the other party.
The mediator may summarise what each party has said. This helps to confirm understanding and may reduce tension.
If the mediator is unclear about anything said in an opening statement, the mediator may ask clarifying questions. Before moving to the next stage, the mediator may reframe or summarise the parties’ statements to ensure that the issues have been properly understood and that the parties are satisfied that the correct matters will be discussed.
The mediator may also help the parties identify:
- any areas of common ground;
- the main issues in dispute;
- matters which must be resolved before settlement is possible; and
- the order in which issues should be discussed.
At this stage, the mediator may encourage the parties to move away from blaming each other and to approach the dispute as a common problem to be solved. The mediator may also encourage the parties to focus not only on their legal positions, but also on their underlying interests and practical needs.
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