1..To have the other side listen to you.

2..To have the other party respect you.

3..To aspire for the other party’s trust, but at least to minimise the degree to which the other party feels threatened.

4..To get the people on the other side to feel that they probably would like you if they met you outside of this litigation.

5..To get the other party to feel you are prepared and professional.

6..To get the other party to feel you are present to listen and have an open mind.

7..To acknowledge to the other party that you understand how he feels, even though as an advocate for the other side you do not agree with him.

8..To acknowledge to the other party he may not agree with what you will say, but you hope he is open-minded enough to listen.

9..To explain to the other party why you believe resolution is in everyone’s interests.

10..To persuade the other party that you and your client will work as hard and as long as is necessary to arrive at a fair solution

11..To explain that a fair solution often require compromise and re-evaluation.

12..To summarise your case in a way that the other party will understand.

13..At the close of your remarks, to express appreciation that the other party has listened and for his participation in the process.

Opening Statement “Do Not’s”

1..Do not refer to the other party by his first name unless the mediator has obtained approval from everyone to do so or unless you have asked permission.

2..Do not look at the mediator when you make your statement. Make eye contact with the other party.

3..Do not move immediately into your position. You must first lay the table as I have outlined above.

4..Do not use absolute words or phrases like “never” or “under no circumstances”.

5..Do not use inflammatory words like “crook”, “stealing”, “malingerer”.

6..Do not threaten.

7..Do not overstate.

8..Do not use “law talk”. Use ordinary words.

9..Do not use a legal concept without explaining it: What is immunity?

10..Do not raise your voice.

11..Do not ridicule the other party’s counsel.

12..Do not touch on nerves or sensitive spots.

13..Do not discuss money.

14..Do not question the other party’s credibility or integrity.

Opening Statement “Do’s”

1..Do demonstrate “active listening” i.e. “I heard you say earlier that……”

2..Do make a commitment to listen.

3..Do acknowledge you understand, although do not agree with how the other party feels.

4..Do state your open-mindedness and commitment to the process.

5..Do express optimism that resolution is possible.

6..Do express compassion, acknowledge pain or distrust, and the like.

7..Do humanise yourself.

8..Do explain your role as an advocate.

9..Do use plain, understandable language.

10..Do demonstrate preparedness and organisation.

11..Do express appreciation for the other party’s participation.

12..Do acknowledge the professionalism and character of opposing counsel.