The Case Against Opening Statements (and How to Do Them Right If You Must)

April 2025

Have you ever walked into a mediation hopeful—and walked out of the opening session wondering if you just made things worse?

You’re not alone. Quick story.

Imagine you are at a mediation between a long-tenured employee who believes she had been pushed out of her job after raising concerns about her manager's conduct and an employer who has extensive documentation of the employee's performance issues. Tensions are high, but both sides are at mediation in good faith and are showing willingness to pursue resolution. Both attorneys request opening statements. The employer's counsel launches into a confident and combative speech about the employee's performance issues, insubordination, and how the company was prepared to "vigorously defend" any claims the employee brings against her employer. During this opening statement, the employee visibly starts to withdraw - her arms cross, her eyes glaze over, and her lips purse. Hours. That's how long it can take to recover from a poorly planned opening statement during private caucus.

As both a former in-house lawyer and now, as a mediator, I’ve seen opening statements set the tone for productive, focused negotiation—but more often, I’ve seen them escalate tension, harden positions, and make it harder for parties to move forward. In employment mediations especially, where people often feel hurt, misunderstood, or blindsided, a poorly framed opening can land like a punch to the gut.

That’s why I usually advise against using them. But I also know that some lawyers (and mediators) think they are instrumental to negotiations. That's fair. So if you’re going to make an opening statement, here’s how to make it productive. After all, you're not at mediation to litigate your case. You're at mediation to reach a structured settlement.

Know Your Audience

This isn’t court and you’re not addressing a judge or jury. You’re speaking to the other party, who may be sitting just a few feet away, and trying to change their narrative. Set your tone accordingly. Avoid legalese, posturing, or language that paints the other side as unreasonable or dishonest. Think of it as a chance to persuade, not provoke.

Don’t Re-Litigate the Dispute

This isn’t the time for a detailed recounting of every factual dispute. If the mediation brief already lays out your case, don’t rehash it. Focus instead on what you hope to achieve in the mediation. What does resolution look like for your client?

Acknowledge the Human Side

Particularly in employment mediations, the human element matters. Even a simple acknowledgement—of the difficulty of the situation, or the fact that there are two sides to every story—can go a long way toward softening the tone and opening the door to resolution.

Plant Seeds, Not Land Mines

If you want to be strategic, use your opening to highlight shared interests, potential areas of agreement, or your client’s openness to resolving the matter. You’re not giving up leverage—you’re demonstrating that you came to the table in good faith.

Consider Skipping it Entirely

Sometimes, the most effective move is to let your brief speak for itself and open the day with a private caucus. This allows parties to ease into the process without the emotional spike that often follows an adversarial statement.

Some Final Thoughts

A well-crafted opening statement can signal readiness to engage, demonstrate compassion, and set a constructive tone - but too often, they miss the mark. If you’re going to use one, use it wisely. Better yet, talk to your mediator beforehand. A quick conversation about tone, timing, and whether an opening statement is even necessary can help ensure that your first move doesn’t become your first misstep. If you want the other side to learn more about your case, consider preparing a brief for your mediator that you can share with opposing counsel. Everyone will have access to your view of the case and you can always share the confidential information privately with your mediator in a pre-mediation call.

Do you have a matter you would like resolved outside of litigation? Take a look at my May calendar for availability.