In a post two years ago this month Here We Go All Over Again… or Not, I posed a series of questions about what might happen to the legal world in this era of Generative AI. While the takeover of the industry by computers that some feared did not move at warp speed, the direction of AI advance as it relates to the law is clear—it will increasingly play a role in the business and practice of law and, likely within a relatively short time, change dramatically the day-to-day activities of lawyers. With those changes will come fundamental shifts in what it will means be—and to become—a successful lawyer. Another corollary of this change will likely be a change in the primary criterion for a successful firm—aggregation and maintenance of the right talent base for the future. Put differently, the successful (and potentially the only surviving) law firms will be those who can play and win the talent game. Talent, not AI or other factors, will be the primary differentiator for firms of the future. Sophisticated AI as part of the practice of law will be available to all and will become a component of “table stakes” within a few years. As a necessity, AI adoption becomes primarily a capital question, as well as a question of firm structure and funding, including acceleration of the industry entrée of external (PE, VC, etc.) capital. But the fundamental question remains—what will differentiate firms when core tools of the legal practice are available to everyone? Talent will be the answer, making the focus on all aspects of talent management critical to future success. Over the past few years, when we’ve asked Managing Partners about their most important challenges, the common topics have included “the associates” and a general concern around the eroding productivity of their lawyer teams generally. The productivity issues stem from many causes, and we’ve written about them in various other recent blogs, but even successfully addressing those concerns does not ultimately guarantee your firm the talent it needs to succeed in the future. While overcoming the cultural and other factors underlying these challenges will be a necessary factor in success, it won’t be a sufficient one. What else will firms need to do on the talent front? First and foremost, firms individually, and perhaps the industry broadly, will need to deeply rethink both what it will mean to be a future successful partner, and perhaps more importantly, how to develop one. The most successful partners today are those to whom the clients will turn in their most challenging times. The trusted advisors, and the true strategic partners when it comes to dealing with important challenges—whether in the courtroom or the deal room—will be crucial. But as AI increasingly supplants much of the work currently done by younger lawyers, and moves into assisting in strategic decision making and other components of the practice, how will firms create the next generation of truly valuable partners? Yes, we will likely need fewer younger lawyers to do relatively routine work (and fewer older lawyers who do routine work too), but we will still need a large—and likely larger than today—number of highly skilled and trusted lawyers upon whom the clients confer their trust. A different development model will be needed to assure this supply, which may require two additional changes: a rethinking of the typical legal pricing model, and a new level of cooperation with the clients. That development model itself will have a different structure. Just as today the share of total partners who are truly the trusted and strategic partners of the client are a small-ish subset of the total partners in most firms, likewise the share of total new hires the firm can invest enough in to eventually get them to that level will be smaller than the total group of new lawyer hires every year. But proper selection, and long-term retention of those new hires will be crucial. Second, the overall leverage structure of many firms will need to change. In the short run, and reflecting the point in the paragraph above, firms might consider building two entirely different groups of associates—one group ready and able to become the next true group of strategic owners, willing to put in the hours it takes to build a truly successful career and another group who may not have the talent or desire to be those future leaders but who can contribute to the firm’s current success while handling the remaining routine work and much of the more basic work that is still needed in the firm. In a sense, the latter group becomes a type of “super paralegal” or new paraprofessional group with its own career path, while the first becomes a smaller, but more intense associate class. The second group might resemble an enhanced “staff attorney” program but provide a separate lifetime job category with its own benefits and rewards. The first group will need a different compensation model from today to protect the firm from undesired losses and will become an area for intense investment by the firms. As a corollary to the restructuring of associate life, firms will need to think carefully about what they are looking for in the new lawyers in whom they plan to make significant investments. Most firms have come to the realization that brainpower alone—whether reflected in LSAT scores, law school rankings or your place within your graduating class—is insufficient to assure career success. It takes more than drive, empathy, social skills, and other key traits to rise to the top and gain the trust of clients. These associates will also need a strong business sense, and perhaps psychological traits more readily found in the business world than the legal world. Most firms have yet to discover how to systematically identify and attract such candidates, and when they do get them fortuitously, are often hard pressed to keep them. Third, firms will need to find ways to better capture the value of the senior talent where a significant portion of current law firm knowledge resides, while also doing a far better job of managing transition as lawyers approach retirement. Much of this challenge relates to compensation models and legacy overhead structures. It just doesn’t work in today’s law firm economic structures to have many senior people (intentionally) working part time, even though their potential contribution is significant. More than a few firms face capacity shortages for highly skilled work, while simultaneously struggling to train and develop the next generations. While many senior lawyers struggle, understandably, with the transition to retirement, better transition management programs, different overhead structures, and more flexible compensation design might help firms and lawyers manage much more fruitful and productive transitions. Finally, in addition to better managing the early and later parts of a lawyer’s career, firms will need to focus more intently on its middle. Retaining the key, well trained mid-career star lawyers who manage the bulk of the firm’s work (and do most of the hands-on training of younger talent) is critical to assuring the quality and success of the firm one and two decades from now. While individual firms obviously have radically different experiences, the median partner retention rate in the AM Law 100 firms was roughly 90% for the period 2020-2023[1]. Even at this reasonably strong retention rate, a firm loses roughly half its partners every six years, and many firms have far worse retention rates. Given this challenge, most lateral hiring strategies do little to build a law firm—most are working as hard as they can to stay in the same place, with new hires replacing departures and retirements. To build a stronger, deeper firm, you must both hire and retain people for the long term. Each firm’s talent base is unique, but not all are created equal. To the extent a firm’s talent is primarily just capable of efficient processing of relatively routine legal work it may find itself a few years from now the victim of a rapidly accelerating AI driven revolution in the industry. Such firms will likely be either much less profitable or potentially cease to exist. But to the extent the firm has a talent base capable of gaining and keeping client’s trust for their business or for key aspects of important work, those firms will remain relevant to the clients, and profitable to their owners. Talent is the one component of the successful firm that can’t be easily duplicated simply by spending money. You must build the right culture, select the right people, build the right structures around them, pay them appropriately, create opportunities for growth, and build reasons for them to stay with the firm long term. It’s not easy, and the outcomes will fall along a spectrum of success. But the firms who figure out how to win the talent game will ultimately be the winners of the future. Which brings us full circle. The next time your firm sets out to do its “strategic plan”, think carefully about what you are really doing. A strategy that doesn’t include a serious, long term talent focus—not just a “plan” to “grow out office in X city through lateral hiring”—is not a strategy that can meet the future our industry faces. Talent is the final strategic frontier, and those that wade boldly into its challenges will have the best shots at being winners of the future. [1] “Which AM Law 100 firms have been retaining their lateral Partner hires?”, Pirical, February 12, 2024, pirical.com/data-insights/amlaw100-partner-retention 

ChatGPT, Perplexity, Google’s AI Overviews, and dozens of emerging AI search options are quietly reshaping how people discover attorneys. The question isn’t whether AI search will matter for your firm; it’s whether you’ll understand how these systems see your firm when they decide which lawyers to recommend to someone facing, for example, a divorce, planning their estate, or navigating a business dispute. Unlike traditional search engines that index web pages, AI search tools synthesize information from multiple sources, weigh authority signals differently, and can even hallucinate details about your firm. They’re creating a parallel universe of legal discovery. The firms that optimize for AI search visibility today will not only endure the transition, they’ll capture clients who never make it to page two of Google because they found their answer and their lawyer in a single AI-generated response. Let’s dive into some of the tools that can help your firm understand its AI search visibility. AI Search Visibility Limitations of Google’s Free Tools Currently, there are not many ways to understand your AI search traffic within Google’s free tools. I am hopeful that in the near future, there will be more data available, but for now, here is what each tool can tell you. GA4 Google Analytics (GA4) allows you to see the traffic coming to your website from AI search engines, such as ChatGPT and Perplexity. You will need to play around with the filters within the Acquisition Reports, but we have found this to be the best free option for getting an initial understanding of the traffic your law firm’s website is generating from AI sources. Unfortunately, though, this will only tell you when someone clicked through to your site from an AI search; it will not be able to give you any data on how many times your firm was cited or mentioned. Search Console There is no way to track AI visibility directly within Search Console at this point in time. Right now, you can assume you are showing up within Google’s AI Overviews if you are seeing a spike in impressions; however, there is no way as of yet to filter out AI Overview traffic versus regular organic search traffic. Four AI Search Visibility Tracking Tools to Consider There is an abundance of new tools popping up in order to provide legal marketers with clarity on their AI Search Visibility. Let’s dive into some of the main ones that your firm should consider. Semrush AI Toolkit The Semrush AI Toolkit provides comprehensive AI search visibility analytics through its dedicated suite of artificial intelligence monitoring tools. The platform tracks how law firms appear across major AI-powered search engines, including ChatGPT, Claude, Perplexity, and Google’s AI Overviews, offering insights into citation frequency, source attribution, and competitive positioning within AI-generated responses. Pricing begins at $129.95 monthly for the Pro plan, with advanced AI features available in higher-tier subscriptions ranging up to $499.95 monthly for enterprise-level access. Conductor AI Tracking Conductor AI Tracking offers enterprise-grade AI search visibility monitoring as part of its comprehensive website optimization platform. The tool monitors visibility across search engines and LLMs like ChatGPT and Perplexity, measuring how content appears in AI answer engines to track visibility and identify opportunities. Legal firms can leverage Conductor’s AI tracking capabilities to understand their brand mentions within AI-generated responses, monitor competitive positioning across multiple AI platforms, and integrate AI search data with traditional SEO metrics through a unified dashboard. The platform combines content optimization, technical SEO auditing, and real-time website monitoring alongside its AI visibility features. Conductor operates on custom enterprise pricing tailored to specific organizational needs. Profound Profound is an AI visibility tracking platform specifically designed for those seeking comprehensive oversight of their presence across AI-powered search engines. The platform tracks how large language models (LLMs) like ChatGPT, Gemini, and Microsoft Copilot mention and rank content, while offering multi-region prompting and 20+ languages functionality, enabling firms to see visibility changes based on geographic location and language of queries. Profound recently unveiled real-time search volume insights for AI Answer Engines, allowing legal marketers to explore topic frequency across platforms. The platform processes 5M+ citations daily, tracks 4M+ crawler visits, and handles 1M+ prompts to deliver comprehensive intelligence for enterprise clients. Profound operates exclusively on customized enterprise pricing. Ahrefs Brand Radar Ahrefs Brand Radar provides AI search visibility tracking through the established Ahrefs platform, offering access to 5 AI indexes, 100M+ prompts, and zero setup required. The tool monitors brand mentions across major AI platforms, including ChatGPT, Perplexity, and Google AI Overviews. Users can track how often their firm is mentioned, which domains get cited, and the context surrounding these mentions, while accessing competitive share analysis to understand market positioning within AI-generated responses. Brand Radar is available for Lite plan subscribers and higher, with base access starting at $129/month through Ahrefs’ Lite plan. However, AI Overviews, ChatGPT, and Perplexity indexes are now available as add-ons at $99/month each following the beta period. Choosing the Right Tool for Your Firm Selecting the right AI visibility tool requires careful assessment of your firm’s specific needs, resources, and strategic objectives. Before choosing an AI visibility tool, you will want to assess whether your marketing team can effectively interpret and act upon the data each tool provides because sophisticated analytics become worthless without the ability to implement strategic changes. Next, evaluate the integration capabilities with existing marketing technology stacks, data export options for reporting, and the learning curve required for your team. Lastly and most importantly, align tool selection with measurable business objectives. Understand what you want to get out of the tool and be mindful of what your budget may be. For example, enterprise solutions like Conductor and Profound offer comprehensive capabilities but require a higher financial commitment, while tools like the Semrush AI Toolkit provide accessible entry points for firms already invested in traditional SEO platforms. The right tool is different for each firm, so take the time to identify which would be the best fit for you and your team. Looking Ahead to the Future The search landscape is already shifting dramatically. The share of Americans who have used ChatGPT had roughly doubled since summer 2023, and as of June 2025, 34% of U.S. adults say they have ever used ChatGPT, according to a Pew Research Center survey, indicating a growing use of ChatGPT and other AI agents as traditional search alternatives. Law firms face a fundamental reckoning: their visibility will increasingly depend not just on traditional SEO signals, but also on how effectively AI systems understand, cite, and recommend their expertise. The firms that invest in AI visibility tools today and develop the organizational capability to act on their insights will capture the growing segment of potential clients who never reach a traditional search results page, having found their legal counsel through AI-generated recommendations instead. Don’t Let Your Digital Visibility Tank in the Era of AI Search Law firms that continue to rely exclusively on conventional SEO and website optimization risk becoming invisible to the growing segment of potential clients who trust AI platforms for legal guidance and attorney recommendations. The window for proactive adaptation is narrowing—while your competitors debate the significance of AI search, early adopters are already positioning themselves as the preferred recommendations across ChatGPT, Perplexity, and emerging AI platforms. In an industry where referrals and reputation drive success, allowing AI systems to overlook or misrepresent your firm’s expertise represents an existential threat to future growth. The firms that master AI search visibility today won’t just survive the digital evolution—they’ll define it, capturing clients and market share from competitors who waited too long to adapt to the new rules of legal discovery. 

Walk into any large law firm today, and you’re likely to find attorneys from four different generations working alongside each other: Baby Boomers, Gen Xers, Millennials, and, increasingly, Gen Z. Each group brings its own set of values, priorities, and approaches to the profession, and though these generational differences can sometimes create friction, they also offer an opportunity for growth, collaboration, and reinvention. As an associate, I’ve often felt the subtle tension between tradition and transformation. There’s the senior partner who expects in-office face time and thrives on the structure of long-established routines (most beginning before 7 a.m. and wrapping up at midnight). Then there’s the associate one office over who takes Zoom depositions from her home office, blocks off time on her calendar for therapy, and speaks openly about setting boundaries. These aren’t just different work styles; they’re different worldviews shaped by the eras in which we all came of age. Both can be, and are, versions of success in the modern workplace, and recognizing that success is no longer defined by a singular path is crucial to fostering intergenerational connection in the workplace. To better understand these contrasts, I recently had a conversation with Mark Frilot, a shareholder in the New Orleans office. A veteran construction litigator who joined the Firm in 2001, Mark has witnessed the evolution of Big Law throughout the Southeast, and in New Orleans specifically, over the last two decades. Throughout our discussion, Mark offered a perspective that was as thoughtful as it was candid. “When I was an associate,” he told me, “Most folks didn’t talk about work/life balance. You worked until the job was done, with few questions and no complaints. That was the culture for most law firms because that was what success looked like.” Today, he admits, success looks different. Many younger attorneys, especially Millennials and Gen Z, value flexibility, purpose-driven work, and personal well-being just as much as professional advancement. They’re more likely to ask, “What kind of life do I want to have?” rather than simply, “How fast can I make partner?” Mark doesn’t see this shift as a threat. In fact, he has been one of the most willing to adapt to a more modern approach to legal practice (Mark loves Microsoft Copilot), but he admits it took some adjustment for many others. He noted that many attorneys in his same generation used to think younger associates were disengaged if they didn’t respond to emails at midnight. What must be acknowledged, however, is that commitment requires a certain level of mindfulness. Mark highlighted throughout our conversation that younger attorneys aspire to be excellent lawyers and whole individuals. We both agreed that this is a generational evolution, and it’s a healthy one. As clients embrace this mindset in their own offices, many firms are beginning to change their views on what it means to bring your full self into the workplace, and most clients even expect our teams to be fulfilled in their personal lives in order to accomplish excellence in client service. Still, differences persist—not just in values, but in how we work. More seasoned attorneys often value the organic mentorship that happens in an office setting: such as quick hallway questions and impromptu brainstorms in a colleague’s doorway. For younger attorneys, especially those who entered the profession during or after the pandemic, hybrid and remote work aren’t accommodations—they’re the baseline. This has led to a common debate: Does remote work hinder mentorship and firm culture, or does it empower attorneys to thrive on their own terms? The answer, it turns out, is both. “There is something lost when we’re not physically together,” Mark explains. Law is ultimately a human profession. Relationships matter. But, as a profession, we must also recognize that productivity and physical presence aren’t always the same thing. We’re all learning how to trust each other in new ways, and trust may be the key to navigating these generational divides. Too often, we default to stereotypes (Boomers are rigid, Millennials are entitled, Gen Z is fragile), but those labels ignore a required nuance. Many senior attorneys are actually eager to mentor and adapt, while many younger attorneys are more ambitious and driven than their senior counterparts may admit. When attorneys take the time to understand one another across generations, they often discover more common ground than conflict. At its best, a multi-generational workplace blends wisdom with innovation. Senior lawyers bring institutional knowledge, judgment honed by decades of experience, and a long view of the law’s evolution. Younger attorneys bring technological fluency, fresh perspectives on justice, and a deeper understanding of the world outside the boardroom. At Baker Donelson, the most successful teams are the ones that learn from each other. When we resist the urge to cling to “the way it’s always been” or dismiss the new as naïve, we create a culture that is not only more inclusive, but more resilient. We’re not just building careers; we’re building a profession that reflects the complexity of the world and the clients we serve. That means bridging generations, embracing differences, and recognizing that growth doesn’t always come from looking down the ladder, but sometimes from looking across it. 

Silicon Valley thinks it knows how to fix law. Tech founders pitch me their vision weekly: AI-powered law firms where bots negotiate with bots, where marketing algorithms feed cases directly into language models, where human interaction becomes an inefficient relic of the past. These conversations fascinate me, not because they’re right, but because they reveal the tech world’s profound misunderstanding of what lawyers actually do. This disconnect is striking. These smart, successful people, many of whom have built billion-dollar companies, have never represented a client. Most have never worked in law at all. Yet they speak with absolute certainty about our profession’s inevitable transformation into a purely automated service. They see law as a data processing problem waiting to be solved. They’re wrong. The Problem with Silicon Valley’s Legal Vision The fundamental error in tech’s approach to law stems from a category mistake. They see legal work as information processing: documents in, documents out. Find the precedent, apply the rule, generate the contract. If that were all law involved, then yes, machines would already have replaced us. But walk into any courtroom, mediation, or negotiation room. What you’ll find isn’t a sterile exchange of data points. You’ll find humans. Messy, irrational, emotional humans trying to resolve conflicts that matter deeply to them. The client whose business partnership is dissolving isn’t just losing money; they’re losing a relationship they spent years building. The judge isn’t just applying rules; they’re weighing credibility, reading body language, and making judgment calls about human behavior. The opposing counsel isn’t just arguing law; they’re managing their client’s expectations, emotions, and sometimes unreasonable demands. This human complexity isn’t a bug in the legal system. It’s the central feature. Laws exist to govern human behavior, resolve human conflicts, and protect human interests. The notion that you can remove humans from this equation fundamentally misunderstands what law is. Tech’s vision assumes that legal outcomes follow pure logic. Anyone who has practiced law knows better. I’ve watched judges rule against clearly winning arguments because something about the lawyer’s presentation rubbed them the wrong way. I’ve seen clients reject favorable settlements because they needed to feel heard more than they needed to win. I’ve witnessed mediations succeed not because of brilliant legal arguments but because someone finally acknowledged the emotional hurt underlying the dispute. The most logical outcome rarely prevails in law. This frustrates engineers and entrepreneurs who built their careers on solving problems through logic and efficiency. But law isn’t engineering. It’s a profession built on navigating human complexity, not eliminating it. Technology’s Real Role in Law’s Future None of this means technology won’t transform legal practice. It already is. But the transformation looks nothing like the bot-to-bot negotiations Silicon Valley envisions. Large language models are revolutionizing how lawyers handle information. Document review that once took weeks now takes hours. Contract analysis that required teams of associates can be performed by a single lawyer with the right tools. Legal research that consumed entire afternoons happens in minutes. This isn’t hypothetical. It’s happening now in law firms across the country. This efficiency gain creates an interesting paradox. As production work becomes commoditized, the human elements of legal practice become more valuable, not less. When any lawyer can generate a competent brief using AI, what differentiates great lawyers from mediocre ones? Not their ability to cite cases or draft boilerplate language. Instead, it’s their ability to understand what their client actually needs, to read the room during negotiations, to build trust with opposing counsel, and to persuade judges and juries. The firms that will thrive aren’t those that eliminate human interaction but those that double down on it. When technology handles the routine work, lawyers gain something precious: time. Time to actually listen to clients instead of rushing through intake calls. Time to understand the business context behind the legal issue. Time to build relationships that lead to better outcomes. I predict we’ll see successful lawyers spending less time in their offices and more time in their clients’ conference rooms. Or even their kitchens. They’ll use the hours saved by AI not to take on more cases but to go deeper on the ones they have. They’ll invest in understanding their clients’ industries, cultures, and goals in ways that previous generations of lawyers never could afford to do. This shift rewards lawyers who excel at human connection. The rainmakers of tomorrow won’t be those who master ChatGPT prompts but those who master the art of building trust, reading people, and navigating complex human dynamics. Technical competence becomes table stakes; emotional intelligence becomes the differentiator. The Uncomfortable Truth About Legal Innovation Here’s what makes tech entrepreneurs uncomfortable: Some inefficiencies in law exist for good reasons. The deliberate pace of litigation gives hot tempers time to cool. The formality of legal proceedings signals their seriousness. The requirement for human judgment in critical decisions protects against algorithmic bias and preserves accountability. Could we automate small claims court? Probably. Should we? That’s a different question entirely. When people come to court, they often need more than just a decision. They need to be heard. They need to feel that someone in authority took their problem seriously. They need the cathartic experience of telling their story. An algorithm, no matter how sophisticated, cannot provide that human recognition. The legal profession will adopt technology aggressively where it makes sense. And it makes sense in many places. But the core of legal practice will remain stubbornly human because the problems law solves are fundamentally human problems. They involve trust, betrayal, fairness, and justice. These concepts resist algorithmic reduction. The Path Forward The future of law isn’t a choice between humans and machines. It’s about humans using machines to be better humans. Better listeners. Better advisors. Better advocates. The lawyers who understand this will build the practices of the future. Stop worrying about being replaced by AI. Start thinking about how AI can free you to do what only humans can do: connect, empathize, persuade, and judge. The future of law looks a lot like its past. Deeply, irreducibly human. The only difference is that we’ll have better tools to handle the boring parts, leaving more time for the work that actually matters. That’s not a vision that excites venture capitalists looking for 100x returns. But for those of us who chose law because we wanted to help people solve real problems? It’s exactly the future we should be building. The tech bros pitching me their automated legal utopias aren’t just wrong about law. They’re wrong about what clients want, what justice requires, and what makes law a profession rather than merely another service industry. Their mistake is our opportunity. While they’re building tools to replace lawyers, we should be using those same tools to become irreplaceable. The firms that win won’t be the ones that eliminate the human element. They’ll be the ones that use technology to amplify it. The future of law, like its past and present, is human. The sooner Silicon Valley figures that out, the sooner we can have a real conversation about innovation in legal services. 

Are opening statements in mediation beneficial toward reaching a settlement? There is an ongoing debate by both advocates and neutrals concerning the advantages and disadvantages of including opening statements in mediations. Supporters contend that opening statements, when handled properly, permit each side the unique opportunity, perhaps for the first time, to personally present their stories and to hear relevant facts and law that may help to guide the parties toward the needed resolution. Opponents claim that opening statements can unnecessarily derail the settlement process at the outset, especially if the presentations are negative or overly argumentative. Here’s a closer look at the pros and cons of using opening statements in mediation and how to determine whether an opening statement is appropriate for your case. The Case for Opening Statements One of the strongest advantages of permitting opening statements is the opportunity for the parties, who may have simply been passive observers in the proceedings thus far, to directly participate in the process. Further, a party’s participation in opening statements allows the individuals involved to share their perspectives and feelings about the dispute, which may itself be a significant component in the settlement process. Often parties want “to be heard” or to “have their day in court”. Having the party participate in opening statements helps meet this need and may facilitate opportunities for settlement. If handled correctly, opening statements can create a constructive and positive tone for the rest of the mediation session. If the parties establish a respectful and solution-oriented approach to the opening statements, they may restore the intended civility that should be part of such a process. If the statements are cordial and the parties can meet face to face, it may help diffuse any hostility that existed as a cause of the original dispute, as well as to ease acrimony that may have developed during the preceding litigation. Opening statements may allow the parties to share their positions in a confidential environment and convey the evidence that may help the parties understand their respective risks of litigation. Conducting opening statements may help encourage transparency in the parties’ claims, help to resolve previously misunderstood facts, and clarify each party’s motivations and goals. Such clarity and insight can demonstrate the mutual good faith needed to reach a resolution of the parties’ conflict. Finally, opening statements can help educate the mediator. Listening to opening statements and the recitation of the main factual and legal issues in the dispute can provide needed insight for the mediator who is charged with helping the parties reach a resolution. Equally, opening statements may educate the participants on some of the intangibles of the case, including the quality of the lawyers involved and the effectiveness of the parties as potential witnesses at trial. The Case Against Opening Statements Of course, there is the other side of the coin. If the opening statements are argumentative, rather than conciliatory, they may create further animosity and distance between the parties, taking what would otherwise be an opportunity for discourse and dialogue and replacing it with a situation where scorched earth becomes the goal. Aggressive opening statements can directly derail potentially successful mediations. In certain cases, opening statements can trigger pain or distress by forcing the parties to relive or reexamine the event. This is true in certain emotionally charged or sensitive cases (such as those involving sexual harassment and sexual assault) where the impacted party could be retraumatized by presenting the case again during the opening session. Comments that address blame can lead to entrenchment and unnecessary tension in the mediation which will discourage open dialogue and negotiation. Lastly, sometimes it’s just a matter of time. Opening statements can be time-consuming, which may reduce the remaining time otherwise available for problem-solving and negotiation within the separate caucus sessions. Moreover, sometimes, depending on the status of the case, opening statements are simply unnecessary, especially if the parties have already participated in lengthy discovery or motion practice. In such cases, opening statements may be redundant and even counter-productive to the settlement process. Deciding Whether to Have an Opening Statement The final choice, as to whether to allow opening statements or not, can be found in the ultimate flexibility that is inherent in the alternative dispute resolution process. Before the mediation starts, the mediator can review the type of case involved, as well as the nature and demeanor of the parties and their counsel. Because every case is different, the mediator’s analysis of that case, including the respective expectations of the parties and counsel involved, can be helpful in leading the parties to decide whether the mediation should begin with opening statements or in separate caucuses. Giving opening statements, just because they are a common part of the mediation process, without specific consideration as to the nature of the case and the parties involved, may squander the goodwill and credibility of the negotiation process. If the parties agree to participate in joint opening statements, consider these guidelines: Brevity is important. Mediation can be stressful, and parties have limited attention spans. Shorter presentations may be more effective. Each party should express appreciation to the other party for participating in the mediation, especially if the session is voluntary. Visuals can often add value to a presentation, and PowerPoint slides can highlight key facts and issues. Avoid negative assertions in the presentation. Remember that tone is important and the purpose of the mediation is to find consensus. Often parties stop listening if they are being criticized. As important as this debate might be, there remains no clear answer as to whether opening statements should or should not be used as part of the mediation process. Every case is different, as are the parties, lawyers and mediators involved. The best approach is to consider the matter as a whole and make the decision that the parties mutually agree would be the best for that case. The mediation process is also fluid, so a mediation session that does not start with opening statements may reconsider their use during the mediation itself. Flexibility is the key. *Originally published in the Daily Report and reprinted with permission.