As a mediator I have heard a lot of bad opening statements. I, and I suspect other mediators, have a particular pet hate. This is the passive-aggressive statement. It is typically delivered entirely by the legal representative, in a head down posture without eye contact (hardly a demonstration that you believe in your position), in a monotone and with almost no emotion at all, and often read out. It is aggressive in content and roundly berates the other side for a range of legal and procedural failings. When a mediator hears this type of statement they usually sigh inwardly (we are of course trained to limit outward show of our emotions) and mentally recalculate their dinner plans in anticipation of a long day!
I recently heard such an opening statement. However, at the end something different happened. The representative abandoned his notes, looked up, made eye contact and delivered a heartfelt and genuine apology behalf of his client. The change in atmosphere was palpable. It was like the emergence of the sun on a rainy day. The other side, who had largely switched off, sat up in their chairs and paid attention. In the subsequent private session, the other side complained bitterly about the first part of the opening statement but were happy with the apology. I never told the representative but the apology saved the statement and quite possible the entire mediation. If they had led with that and kept the rest to two sentences they might have settled an hour or two earlier and paid out less money.
In a lot of mediations a well delivered and heartfelt apology has a powerful effect and can really alter the dynamic. That is not to say that it works every time and I am not suggesting that every representative start throwing in an apology in their opening statement. But delivered skilfully and at the right time it can be change the tone and commence a positive drive to settlement.
However, this was not the main point of my post! Apologies are often not given due to a fear that they will be taken as an admission of liability. It was because of this attitude that I was intrigued to here that the Margaret Mitchell MSP has proposed the Apologies (Scotland) Bill in the Scottish Parliament. This fairly simple piece of legislation states that where there are civil legal proceedings ongoing an apology made outside those proceedings it is not admissible within the context of the proceedings as determinative of liability or to the prejudice of the person giving it.
I have no idea if this Bill will gain any time in the Scottish Parliament or if it will become law. If it did it might just lead to an explosion of form apologies shorn of any real meaning. However, it might also tempt more parties to take that key step of giving a genuine apology which can only help in mediation.
Perhaps it is time for England to look at something similar.