I have seen hundreds of different Position Statements in my many years of practice as a Mediator. Some have been good, some bad and some downright ugly. So how do you go about preparing a good Mediation Statement? What are the ground rules?
My friends at Consensus Mediation publish a guide on their website which I have unashamedly cribbed from (with their permission and blessing) in preparing this article and they need to share in any fame and fortune that follows on from this guide.
The first thing I need to say is that the position statement is not a mere formality. It should analyse the dispute and communicate your objectives to the mediator. It is also an opportunity to make constructive points to the other party. It should not be a pleading. The parties will already know the legal arguments, and the mediator can read the pleadings for himself.
The statement should set out all the issues that are important to your client, explaining the case as if you were talking to a non-lawyer. Remember, your mediator may not be a lawyer. A good way to start is to set out the background briefly and then explain how the dispute arose.
It is always a good idea to describe how far through the litigation process you are, and to clarify if any settlement offers have been made.
Keep in mind that mediators can sometimes provide remedies which are simply not available from a court. So if you want an apology or acknowledgment of some sort, or anything that a court cannot order – ask for these. The mediator will know these are important and will work around them.
Perhaps an ongoing relationship is an important issue. Could there be business in future if the right deal is struck? Conversely, is a clean break the preferred option?
Keep the acronym KISS in mind, Keep It Simple Stupid, and stick to these basic rules:
- Make the statement concise – no more than half a dozen pages should suffice.
- Include a chronology if appropriate.
- Include case law only if is truly relevant.
- Refer to page numbers in the mediation Bundle as appropriate.
- Use names or initials if possible, rather than e.g. "The Claimant" or "The Part 20 Defendant". Names are much easier to follow.
- Exchange statements with the other party in advance of the mediation day.
- Make sure the mediator has copies of both statements and the Bundle as far in advance of the mediation day as possible.
Finally, it is sometimes a good idea to prepare a Confidential Paper for the "eyes only" of the mediator. This might contain an objective analysis of the strengths and weaknesses of your case, and the other party's case. It may also include concessions your client might be willing to make, and state whether they are dependent upon concessions from the other party. If you recognise that your client's legal position is less than strong, acknowledge this to prevent the mediator spending time on that aspect on the day. The other party will not know that you have issued a Confidential Paper but the mediator will be better prepared.