Opening Statement

 An introductory statement.

 The mediator seeks to inform the parties the entire process of

mediation—the disclosure of the perspectives of each party
on the issue which motivated them to undergo mediation with
the end goal to let the parties reach a beneficial settlement
or agreement between an/or among the parties, the roles of
all the parties involved.

 An opening statement gives you the rare opportunity to speak

directly to the other party and present your position without
the filter of the other attorney or the mediator.
 Parties that Need a Good Opening Statement in a Dispute
Resolution
 Mediator
 Plaintiff/Complainant
 Defendant/Respondent

Purpose and Importance of an Opening Statement

What
 To inform the parties about mediation and its proceedings
and to set the tone and atmosphere thereof.

Why and When

 It is a mediator’s opportunity to reduce anxieties and address
any concerns about mediation before the session begins.

“You never get

a second chance to make
a first impression”

 Each word chosen by the mediator during the opening

statement – to explain the purpose of mediation, his or her
role, and how mediation works – may have a lasting (positive
or negative) impact on the parties.
  As a result, depending on whether the parties like or dislike
what they just heard by the mediator in the first 5 minutes, their
mediation is likely to start off on the right or wrong foot.

Objectives
During the opening statement, you should focus on trying
to create rapport with the opposing client, thereby
effectively bypassing their lawyer’s filter. The mediation is
the only opportunity to do this. Creating doubt in the other
party regarding their case should enhance their flexibility.

The mediation process begins with opening statements.

The mediator will generally get the ball rolling by
introducing him- or herself. At this time, it is advisable to set
the tone for the proceedings.

Mediation can be extremely tense and stressful for the

parties involved, so it is helpful to try to create a positive,
relaxed atmosphere where cooperation is encouraged. All
parties should be made aware that mutual respect would
be expected, as there should be a desire from all involved
to reach a resolution.

Mediator’s Opening Statement

It is an introductory statement which:
 introduce the disputants to the mediator and to each other;
 explain the mediation process; and
 establish trust between the parties and the mediator.
Things to Bear in Mind
1. Sets the tone of your approach;
2. Demonstrates your preparedness;
3. Shows your ability and advocacy to resolve the conflict; and
4. Allows you an important opportunity to build credibility with
the parties.

Making an Opening Statement at Mediation

o Opening statement must be one that invites the opposing
parties into a relationship of trust or at least in a non-threatening
relationship.
o Do everything to lower parties guard.
o Compliment the plaintiff, the other party or the opposing lawyer
if present.
o Help the defendant in a personal injury case to view the
plaintiffs’ perception.
o Set an atmosphere for cooperative negotiation without
intimidation.
o Some parties look for a soft mediator who will go gently from
party to party as a messenger.
o Others look for a bully to ―sort out the other side.‖
o Some look for creativity to cut through complexity to a solution,
and others simply want a mediator to legitimize the result.
o But successful mediation involves helping parties to understand
their own interests, the realistic choices they face, and the best
options available – and to find a deal if one may be had.
o And this depends on the mediator pitching the right relationship
with the parties.
o This is about relationship building, confidentiality and ownership.
It depends on impartiality and respect for each party.
Styles of Opening Statements
1) Monologue Style
2) Interactive Style

Parts of Mediator’s Opening Statements

1. Introduction
a) Introduce yourself Arrangement; Establish rapport

as a Mediator Is the seating comfortable?

Is the lighting okay?

b) Introduce the parties’
Is the temperature okay?
names and position
Can I do anything else to make
this setting more comfortable?
2. Welcome
- State your Welcome Statement

3. Mediation Overview
a) Background of Mediation
b) Goals and Expectations

4. Role of the Mediator

a) Training
b) Role

5. Role of Parties
a) Parties’ decision
b) Lawyer’s supporting role
6. Voluntary
a) Agreement to Mediate
b) Agreement to refuse not to be Bound

7. Confidential
a) General Rules
b) Mediator’s Notes and Transcript
c) Party’s Statement

8. Stages of Mediation
1) Parties Opening Statement
2) Joint Discussion
3) Caucus
4) No Time Pressure

Matters to Consider:
 Who speaks first?
 Who makes Opening Statement?

9. Ground Rules
- Right conduct to observe during mediation session
- Establish ground rules

10. Authority to Settle

- Representatives/Counsels

11. Questions
- Asking for clarifications
12. Permission to Proceed

Creating these expectations will make your job easier and

will improve the chances for a successful mediation. Once the
ground rules have been set, the next step is to ensure that
both parties are aware of what is expected from them. To
drive this point home, obtain a commitment from all involved
that they intend to mediate in good faith and to come to an
acceptable outcome.

Preparing Parties’ Opening Statements

1. Know the case

2. Hand over discussion
3. Discuss expectations
4. Screen for power imbalance
5. Obtain an agreement to mediate expectations
6. Obtain an idea of the matters to be negotiated
7. Decide
8. Prepare a written agenda

Parties’ Opening Statement

The Parties:
1. Complainant/s
2. Respondent/s
EFFECTIVE INTERVENTIONS TO CONTROL THE PROCESS

1. Analyze and Assess

2. Influence
3. Design
4. Focus

TECHNIQUES IN REFRAMING AND SUMMARIZING TO

CONTROL PARTIES’ OPENING STATEMENTS

1. Framing
- Usually based on complaint or answer

2. Reframing
Examples:
a) Change a negative to a positive
b) Remove an accusation or hostility
c) Reframe the motive or intent

3. Functions of Reframing
a. Remove an accusation
b. Reorient the parties
c. Shift the focus
d. Remove a personal judgment
e. Focus the parties attention
f. Mutualize concerns and issues
4. Summarizing
- Briefly restating the important features

5. Purposes of Summarizing
a. Neutral and organized version
b. Convoluted exchanges
c. Tested understanding
d. Acknowledgment
e. Established platform
f. Trust developed

6. Summarizing Tips
 Be concise.
 Choose your words carefully.
 Move beyond words.
 Omit blame.
 Leave your judgment out of the summary, be neutral.
 Ask if you are correct.
 Paraphrase only if sensitive issue or precise wording is key.

7. Key Phrases for Summarizing

o ―As I hear you…‖
o ―Let’s see where we are…‖
o I’ve heard you say…‖
o You’ve agreed on …‖
o ―We are still left with the issue of…‖
o ―What you are saying is…‖
A. WRITING A COMPROMISE AGREEMENT

What is Compromise
- a settlement
- a contract

What is Agreement
- A meeting of minds
- A contract

Essential Elements of Agreement

a) Parties
b) Consent
c) Communication
d) Common intention

What is Compromise Agreement

- Reciprocal concessions
- A product or an output

Essence of Compromise
- The very heart and life of every compromise

Requisites of Compromise Agreement

- Must not be contrary to:
a) Law
b) Morals
c) Good customs
d) Public policy
e) Public order
 Kinds of Compromise Agreement
1. Judicial
2. Extrajudicial

Characteristics of Compromise
1. Consensual
2. Reciprocal
3. Nominate
4. Onerous
5. Accessory

Rules in Compromise
a. Special power
b. Special authority
c. Authority granted by the Board of Directors
d. General Rule and Exceptions

Cases which may be subjected to compromise

1. All civil cases, except those which by law may not be
compromised. (Art. 2035, NCC)
2. Special proceedings for the settlement of estates
3. All civil and criminal cases filed with a certificate to file action
issued by the Punong Barangay or Pangkat ng Tagapagsundo
under the Revised Katarungang Pambarangay Law
4. Civil aspect of Quasi-offenses under Title 14, RPC
5. All habeas corpus cases decided by the first level courts in the
absence of RTC judge.
 Cases which may not be subjected to compromise
1. Civil Cases which by law cannot be compromised under Art.
2035, NCC:
a. The civil status of persons
b. The validity of a marriage or a legal separation
c. Any ground for legal separation
d. Future support
e. The jurisdiction of courts
f. Future legitime.
2. Other criminal cases not mentioned above
3. Habeas Corpus petitions
4. All cases under R.A. 9262 (Violence against Women and
Children)
5. Cases with pending application for Restraining Orders or
Preliminary Injunctions.

Advantages of a Compromise
1. Benefits for the contracting parties
2. Liability may be reduced
3. Receive payment as agreed upon
4. Extinguishes an obligation

What are prohibited in a compromise?

- Art. 2038 of Civil Code
- Art. 1330 of Civil Code
- Art. 2035 of Civil Code
- Art. 1306 of Civil Code
 The compromise agreement must truly express the will of the
contracting parties.

Comparison of Different Compromise Agreements

 under:
o Civil
o Barangay
o Mediation

 as to:
o Venue
o Signatories
o Approving Authority
o Enforcement
o Form

DRAFTING A COMPROMISE AGREEMENT

Prepared by

Abonales, Reena Rose P.

Batula, Dave Paulo S.
Cadiz, Ma. Shaira A.