Jon March is a seasoned litigator with the Miller Johnson law firm in Grand Rapids, who has built a successful practice as a mediator. He published at article in the ADR Section January 2015 newsletter entitled, “My Ten Biggest Mistakes as a Mediator,” and he’s given presentations on this topic; I heard one yesterday at the Dispute Resolution Center of West Michigan.

Many mediators can relate to the mistakes Jon mentions. We’ve all had moments when we’ve said something that betrayed our neutrality; we’ve seen potential agreements fall apart because we failed to appreciate that a person of influence wasn’t present in the room; and we’ve all faced the dilemma where at least one party doesn’t want to stick around to sign the written agreement ending the mediation. It’s somehow comforting to know that mediators as experienced and successful as Jon March have similar regrets. No doubt Jon has done so well because he learned from each mistake, and now we learn from him.

The one “mistake” that I think could be turned into a positive concerns the joint session. Jon describes a mediation where plaintiff’s attorney really wanted a chance to address opposing counsel at the start of the mediation; against his better judgment, Jon agreed to let this happen. As Jon feared, opposing counsel used the opportunity to rip the plaintiff to shreds, souring the settlement potential. Jon’s conclusion is that opening statements by lawyers are fraught with danger, and should be permitted only under special circumstances, if at all.

Rather than omit them, a better way to avoid the dangers of lawyers’ opening statements is to prepare the lawyers beforehand. Get them to think about their goals, their audience, their opportunities. While there are risks, I’ve seen lawyers’ openings set the stage for a productive mediation, because each client gets to evaluate opposing counsel and the strength of their argument. If there’s been no discovery, this may be the client’s first chance to size up opposing counsel. It’s an opportunity to hear and clarify differences in facts and law. And it’s also a chance for each client to gain confidence and trust in their own lawyer. Even if there is no discussion after the lawyer’s openings, and the parties proceed to caucus, the mediator has much more to work with than if the parties never heard the other lawyers’ opening statements.

I admire Jon for making his mistakes so public. And I thank him for helping us all learn from his mistakes.