Mediation preparation: Position Papers

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What are position papers?

Position paper is the name originally given to the document sent to mediators in advance of a mediation. Nowadays they are often called mediation statements, mediation briefs or background notes. They are all the same thing.

Do you need one?

No, they are not essential. But they are usually produced in civil and commercial mediations, although sometimes mediators are asked just to read the pleadings or correspondence for background information about the dispute.

Why bother with a position paper?

To save the mediator’s time. The theory is that in half a dozen pages the essence of a long-running dispute can be captured. The mediator can then focus on the main issues arising out of the documents. This saves time at the mediation.

In practice, most position papers are not factual summaries. They are partisan presentations of one side’s case drafted to persuade the mediator to a particular point of view. In fact they are too often restatements of the statements of case already filed at court. This is a waste of time, money and effort.

Anyone drafting position papers has to ask themselves several questions:

1 Who is the position paper for?

There are several audiences.

  • The mediator.
    – What you want them to know? Is the mediator a lawyer? You write differently for non-lawyers.
  • The other side’s lawyers.
    – Are you trying to persuade them that they are wrong and that they will lose at trial? Do you expect them to change their minds at the mediation after reading what you have said? How likely is this? Ask yourself, how often have you changed your mind?
  • The other side’s decision-makers.
    – Are you trying to convince them that they are wrong and they’d better instruct the lawyers to settle on your terms? What will you be able to show them that they don’t already know?
  • Your own clients.
    – Are you trying to show them they have a strong case and that you are the lawyer to win it at trial for them? If they are prepared to contemplate moving from their stated positions don’t make it harder for them to do this by a over-zealous presentation of their case.

2 What is the message that I want to get across?

Be very clear about this. Don’t bury it in detail. Highlight it at the beginning and repeat it at the end.

And remember as Frank Lutz says: ‘it’s not the words that you use that matter it’s the words that they hear’. So put yourself in the other side’s position. Ask yourself how you would react if you read what you have written.

3 Why are you going to mediation?

If the answer is not to try and settle a dispute, what are you doing wasting everyone’s time and money by going. People go to mediation to make peace not war.

An assessment of the overall situation for all the parties involved is much more useful than a partisan presentation of one party’s case. Too many position papers read like skeleton arguments submitted on an application to court. One barrister actually said that his aim was ‘to knock the other side off their perch’. It didn’t work: it never does.

Mediations are not mini-trials. Mediators are not the same as judges. Their job is fundamentally different. So ask yourself what is the value of preparing for mediation in the same way as you prepare for litigation.

TOP TIP:

Ask yourself how often you have abandoned your case on receipt of the other side’s position paper having been overwhelmed by the cogency of their presentation and the weight of their evidence.

If persuading people that they are wrong is a waste of time why not, instead, focus on the benefits for all parties of a settlement?

4 What do mediators want?

Ideally, they want a 4 – 6 page document which is a route map to settlement to help them grasp the issues and concentrate on the most relevant documents. Try and cover the following headings:

  • Brief description of the parties and the main personalities.
  • Brief description of the nature and size of the dispute.
  • Brief description of where the dispute has got to either through negotiation or litigation.
  • Explanation of what the parties are arguing about and why.
  • Assessment of the live issues that will have to be addressed at mediation.
  • Assessment of each party’s options if they do not settle at mediation.
  • Identify any outstanding requests for information e.g. accounts, valuations or expert reports.
  • Description of any offers previously made and reasons for rejection.
  • Details of legal costs to date and going forward to trial.
  • Assessment of why the parties have not been able to settle.
  • Suggestions for the way forward to settlement.
  • List of people who are expected to attend the mediation and their roles.
  • Cross-reference to the most relevant documents in the mediation bundle.

IN A NUTSHELL

If you want to achieve a settlement you need the right atmosphere.

Use the position paper to set the mood and agenda for settlement discussions. Be careful about setting this process back.

TOP TIP:

  • Do not criticise the other side’s clients or lawyers. Everyone reacts badly when they are publicly criticised.
  • Attack the problem; not the people. Otherwise, they will become defensive. People close up instead of opening up.

A forceful and even aggressive presentation of your case in court is one thing-the other side can’t walk out. They can in mediation. Be careful. Sometimes they refuse to even attend at all once they have read an aggressive position paper. What’s the value in that?

After reading each other’s position papers the parties should think that settlement is more likely not less. You want them to feel encouraged not discouraged.

For more detailed help in preparing position papers with check lists and templates see Chapter 15 sections 15.09-15.29 in my book Mediation Advocacy: Representing Clients in Mediation,  2nd edition, Bloomsbury, 2018.