There is no doubt that this is sometimes a valid approach. If the lawyers for both parties agree that going straight to caucus is best, then so be it. Presumably, they know their case--and, more importantly, their clients--better than anyone else.
To the extent that some suggest dispensing with opening statements should be the norm, however, I respectfully disagree. As I have written previously, in today's low trial (or no trial) environment, mediation is often the parties' only effective "day in court." Of course, it is not a day in court, but it provides an opportunity to be heard by a neutral party. This often provides an emotional release by the parties (call it a form of venting).
A joint session with opening statements also forces each party to listen to the other side. Sometimes after the opening session, a client will say something along these lines: "I still think we are right, but can see where they are coming from." If you hear those words, there is a high likelihood the case will settle later in the day.
Similarly, having a representative of a defendant listen respectfully to the plaintiff's side of the case may lead the plaintiff to conclude that the defendant is at least listening and taking things seriously. Again, this can foster a settlement later in the day.
Another important function of the opening statement can be to convey information. In a recent mediation, I was representing a claimant as an advocate on an insurance claim. Our side was concerned that the other side's representative (who was the decision-maker) was not being conveyed the entire story.
We had chosen a good mediator. However, he tried to tell me that we were dispensing with opening statements. I insisted that we were going to make a short opening statement because we felt it was important. He pushed back. I insisted.
The opening statement consisted of very few words, but mainly of playing a videotape of the underlying incident. This graphically conveyed some important information that was a key to our claim. This also demonstrated how these facts might be presented persuasively at trial to a jury.
The case settled later in the day. The mediator later acknowledged that the opening statement was important in setting the tone for the settlement.
What are the key takeaways?
1. As an advocate in mediation, an opening statement may help ensure that my client's side of the case is effectively conveyed.
2. Although opening statements may lead to posturing, they can also set the table for settlement by meeting emotional needs and conveying needed information.
3. Although a mediator may have suggestions about whether or not there should be opening statements, that should ultimately be up to counsel.
Note: When I act as a mediator, I try to have a joint call with counsel (or, if necessary, separate calls) in advance of the mediation. I ask counsel how they want the mediation to proceed, including whether they want to have a joint session with opening statements. Ultimately, the goal is to meet the parties' needs, not to meet the mediator's personal preference about how the mediation should proceed.