Often in a commercial mediation, the mediator will ask the parties to exchange position statements (or ‘case summaries’) a week or so in advance of the mediation date. These position statements are also provided to the mediator. Position statements are written summaries of the each party’s view on the case when entering into mediation.
Importance of drafting a great position statement
The position statement serves an important dual purpose. First, it is the key document which will brief the mediator on the background to the dispute, the main issues and the strengths of your case. Secondly, it represents a real opportunity to speak to the senior decision makers who will be representing the other side at mediation. It may be the first time senior management on the other side has engaged fully with the dispute, and a persuasive position statement can be a very useful tool in influencing their attitude to mediating with you.
What to include in a mediation position statement
Many people who have never mediated before are unsure how to approach the task of drafting their position statement. Any precedents will be of limited use, as the exact contents of a position statement will vary so much from case to case. However, from a mediator’s point of view, an impactful position statement in a commercial case should follow the following general guidelines.
- Don’t just repeat your Statement of Claim or Defence. However powerful your Statement of Claim or Defence, you should resist the urge to simply repeat it in your position statement. A good position statement is a persuasive piece of writing, not a skeleton argument. If you submit a skeleton argument or pleading-type document peppered with legal jargon, the commercial decision makers on the other side may not fully engage with it, and the opportunity to persuade them will be lost.
- Do outline the main issues in the case, and your position on each of those issues. Your mediator will find a position statement which clearly outlines the issues in dispute very helpful, and it may well become the main focus for their preparation. As well as setting out the issues, you should outline your position in relation to each of them. Here you can summarise the main arguments which support your position, and refer to any helpful documents. You should also feel free to point out the main weaknesses in the other side’s case, including any unhelpful documents or (where relevant) the fact that no documents have been produced on a particular point.
- Do consider addressing any weaknesses up-front. During the course of the mediation, your mediator will quiz you (probably in private session) on the weaknesses of your case, and will do the same with the other side. Where there are obvious weaknesses in your case which you know have already been identified by the other side, you may consider addressing these up-front in your position statement, as persuasively as possible. This approach can be more effective than simply ignoring your weaknesses and hoping that the other side and the mediator will ignore them too: they are unlikely to do so! Remember that you are protected by the confidential, ‘without prejudice’ nature of mediation. This means that the other side will not be able to refer to or show your position statement to the judge, if mediation fails and you end up litigating your dispute.
- Do include any settlement offers that have been made to date. Parties are often reluctant to be up-front with the mediator about any offers and counter-offers that have been made to date. However, in reality this information is likely to be disclosed by one party or the other during the mediation. Providing the mediator with this information up-front is likely to save time at the mediation and allow quicker progress to be made. If you previously made an offer which is now no longer on the table (for example, the offer has lapsed or new evidence has come to light) it is perfectly acceptable to make this clear. Mediators understand that litigation is a fluid process and that parties’ positions may change.
- Consider addressing the commercial as well as the legal matters which might form part of a settlement. One of the great strengths of mediation is the freedom the parties have to negotiate a deal that goes far beyond anything the court could have ordered. A settlement deal at mediation can therefore include not just the payment of money but also future commercial co-operation between the parties, in appropriate cases. If future co-operation is something you may be open to (provided of course the other settlement terms are right) you can consider flagging the possibility up in your position statement. This may encourage the senior decision makers on the other side to take a more forward-facing commercial approach to the mediation, rather than focusing simply on the legal rights and wrongs. Some parties do prefer to save the possibility of future business as a bargaining chip to introduce in the mediation itself, and keep silent in their position paper. Either approach can work, as part of a coordinated overall negotiation strategy.
- Consider sending an additional confidential position statement to the mediator. In some cases, there may be information that you feel it would be useful to share with the mediator in advance of the mediation, but which you do not want to share at this stage with the other side. In these circumstances, you can consider sending an additional confidential position statement to the mediator only. You can do so safely in the knowledge that the mediator is bound to keep this information absolutely confidential, and cannot share it with the other side without your permission.
- Do show a willingness to engage with the mediation process, and to try to find an acceptable settlement. Whilst you will (quite properly) want your position statement to focus on the strength of your case on entering into mediation, it is important to strike the right balance. At a minimum, you should include in your position statement an expression of willingness to participate fully in the mediation process, and to resolve the matter if a mutually acceptable solution can be found. This will set the correct tone for the mediation day, and hopefully also encourage the other side to enter the mediation with a productive mindset.
Emma Gooding became a CEDR accredited civil and commercial mediator in 2008. Prior to that she had many years of experience as a solicitor advising the parties to mediation in both the UK and Hong Kong. Emma is also an experienced trainer in the fields of mediation and mediation advocacy. For enquiries please contact email@example.com.