Paris, 07 February 2017
Mediation skills, techniques and strategies are spotlighted this week with the 12th ICC International Commercial Mediation Competition currently underway. Iain Roxborough and Matthew Scully of Clifford Chance, the main supporting organisation of the event, provide their thoughts on the significance of mediation opening presentations in their guest blog for the International Chamber of Commerce (ICC).
Some clients and their lawyers question the need or use of an opening presentation in mediation. Mediators, however, often advocate for them. It provides them with a foundation on which to build upon when discussing the issues with the parties. While some may challenge this approach, we consider that there are clear advantages in opening presentations and the opportunity to make a good one should be taken. Recently, we witnessed this in two mediations in which we were involved in as described below.
The surrounding circumstances to the issue
Even though opening presentations are quite typical, they are sometimes avoided or kept short. Parties often think the written summaries of cases are sufficient and will have been read, so the sooner negotiating starts the better.
It is possible that such presentations are not properly used in part because they are often seen as awkward elements of the day. This may be because:
- they start the day so it means breaking the ice. (However, there are advantages to be gained by getting acquainted. For example, people can think positively when this is done);
- they can appear confrontational when everyone is there supposedly to reach an agreement. (Although they do not have to be aggressive in style.);
- they consist of presenting the case rather than a potential settlement when the purpose of mediation is to negotiate a resolution. (Still, the issues are what are at stake.).
Those attending the mediation are often not those who are primarily tasked with presenting the case in a court or arbitration. The business representatives involved may be witnesses though are not the lawyers who will argue the legal niceties. Even the lawyers there are often not the advocates for the case. Many times advocates are thought of as being better kept out of the way until the hearing. Sometimes the clients are not trusted to make the presentation and just make a limited statement, such as “we have come here in good faith to seek to find a resolution”, which, on its own, can sound weak.
Opening presentations for success
Two recent mediations we have been involved in demonstrated to us the potential value of the opening presentation in helping explain the key elements of the case and the parties’ confidence in them. Demonstrating confidence is best done not just by asserting you are confident but by showing you believe in your case. There is every need to make the presentation an enjoyable and effective experience. Some would say a downside is that a potential client witness will be seen as if he or she is giving evidence and that will reveal his or her limitations-although most businesspeople are able to talk their way through a presentation. They are not going to be subjected to cross examination so the scope for undoing any good is limited.
In this mediation, the case was presented by a lawyer. There were no slides or audio visual aids. The lawyer talked quickly and quietly and at times it was difficult to follow the detail of what he was saying. Originally, the client was not going to speak, but did intervene in the end in an unplanned way. The other party had a presentation by its lawyer, which was crisper, spoken more slowly and demonstrated conviction in the case. However, the client did not appear to be allowed to speak. Although the second opening made more of an impression, the lack of the client’s direct input seemed to weaken its effect.
In this mediation, there was an issue of credibility and good faith. The first presentation was given by a lawyer using PowerPoint slides. He included an explanation of his own participation in the case, almost as a witness would, telling the story about how he and his client had acted properly and in good faith. That was followed by the client’s representative telling his story, too. The combination of the two, almost giving witness evidence, was compelling and energising. Yet, this approach was agreed on only at the last minute and at the request of the mediator. The other party then made their presentation, which was without slides, and the lawyer read from a prepared statement. Again, while these are all matters of subjective impression, it appeared that the more open witness-like style of the first presentation was more effective.
Seize the opportunity
Mediators generally urge parties’ representatives-not just the lawyers-to speak at these opening presentations. Perhaps businesspeople are more engaging than lawyers and the risk of disclosing what a witness will say later at a hearing is usually overplayed. Nonetheless, it is more than simply making an opening presentation that is needed. Seize the opportunity to develop a presentation and make it as compelling and effective as possible. The effort taken will demonstrate your conviction in the case.