The mediator's introduction is an opportunity for astute counsel to glean important information about the mediator, his preferences, and his style. Listening closely to the words the mediator uses can offer insight into the mediator's hobbies, lifestyle, frame of reference on the case, and mediation philosophy.

Much rapport can be built and strategy formed by learning about the mediator during his introduction. Is the mediator married? Does the mediator choose legal-speak or lay terms? Is the mediator's eye contact directed toward you or your client? The latter may tell you who should to persuade the mediator about the case's validity. Is the mediator setting your expectations for compromise or collaboration? Does the mediator talk more about finding creative solutions, or settling the case?

Additionally, counsel can observe whether the mediator uses a "can't we all just get along?" style, or a more judicial or imperial style. All of this information gives counsel the ability to instantly adjust their style and be most effective with that mediator.

Advocates who provoke the other side will spend the day in a bullish tug-of-war. Remember, there is nobody in a mediation who has been empowered to take something forcibly from someone else and give it to you - you must get it from them voluntarily, if you are to get it at all.

Remember that clients are often distracted during the mediator's introduction. Clients who are new to the mediation process can be overwhelmed. They can also be preoccupied by their opponent sitting across the table from them, especially if the mediation is the first time the two have been together since the dispute. Good advocates will jot down some key points the mediator touches on and use those points later in the afternoon if the client becomes edgy or frustrated with the negotiations. Attorneys can use the time when the mediator is out of the room to reintroduce the mediator's introductory remarks.

Additionally, the mediator's introduction gives the advocates permission to be more congenial so their clients understand why they are not being the zealous advocates the clients might otherwise expect. It helps the clients understand that if counsel can be perceived as fair by their opposition, they are better positioned to settle the case. This may differ from the client's predisposed expectation, but the mediator's introduction can help the client understand that mediation is not an adversarial hearing where the lawyer should be objecting or examining the opposition like in a trial.

Coaching your client in advance also disarms adversarial or inflammatory tendencies, and focuses them on information the mediator wants to hear. If you have concerns, have clients discuss a narrowly defined subject they know, such as the company's background and their product or service.

Using the mediator as a negotiation coach in caucus is nothing new, but one new idea that is paying off in larger cases is to hire a mediator as a negotiation consultant. It is becoming more common to hire experienced neutrals to act as settlement consultants to one party in a large mediation. While that is a topic for another article, it is a good example of using the neutral's knowledge for advantage.

In closing, next time you find yourself wondering why you have to sit through another mediator's introduction speech, remember that aside from simply setting the tone and laying down any ground rules, the mediator is providing tips and insights into how to maximize your success in that mediation, leaving your clients satisfied with their representation and their result.

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Lee Jay Berman is a full-time mediator and trainer based in southern California. He is a Distinguished Fellow with the International Academy of Mediators and a Diplomat with the California and National Academies of Distinguished Neutrals. He is the founder and President of the American Institute of Mediation, offering world class training for the complete mediator. He can be reached at (310) 593-9905 or leejay@mediationtools.com.