September 04, 2019 Practice Points
Five tips for an effective mediation statement, a carefully drafted mediation statement can help a mediator plan strategy for a successful settlement., by mark a. romance.
Few commercial litigation cases proceed to trial—the risk of leaving the fate of a case to a group of citizens who did not volunteer to decide your case is just too great. Accordingly, mediation is one of the most critical points in a case, and one of the key moments for a lawyer to achieve success in a commercial litigation matter. A good confidential mediation statement can be a roadmap to help the mediator help you obtain a successful result.
Here are five tips to for a more effective confidential mediation statement:
- Be upfront . Your first paragraph should tell the mediator who you represent, who the opponent is, summarize the claims and explain what is at stake. This should be short and to the point. This suggestion may seem obvious, but too many lawyers start their statement with multiple paragraphs of background facts without giving a brief summary up front about who the parties are and what the case is about. The mediator is then left to sift through pages of facts and wonder why they matter. Start with a summary of who the parties are and what is at issue before getting into the facts and the details of the claims.
- Provide a concise summary of the facts and claims . The next section should provide details to help the mediator quickly learn the key facts and how they relate to what is at issue. No mediator will know the facts as well as the lawyers, nor do they need to. The mediator needs to understand the basic facts and background about the parties to develop strategies to help the parties resolve the case. The mediator will not have the patience or need to read an appellate brief. Avoid prose but use headings and bullet points to organize the section, and to summarize the claims, defenses and background about the parties. This style makes it much easier for the mediator to quickly get the key information. Using the same format, you should also include a summary of the posture of the case and describe the status of discovery and key dates such as summary judgment hearings or trial.
- Summarize prior settlement discussions . It is important for the mediator to know the history of efforts to resolve the case. This section should be specific as to all demands and offers, including details that affected the prior discussions, such as key rulings or depositions that occurred before or after a demand or offer was made. If no settlement discussions have occurred, explain why. This information will help the mediator craft a strategy in advance of the mediation based on prior efforts.
- Identify strengths and weaknesses . This is a critical component of a mediation summary. A good lawyer will not only focus on the strengths of her case but will also recognize weaknesses, whether in facts or law. Often a client has tunnel vision and sees a case from an emotional or narrow point of view and even his own lawyer cannot help him see the other side. A mediator can help a lawyer convince both an opponent and even her own client that weaknesses exist and compromise may be necessary. In a confidential mediation statement, it is helpful to include factual and legal weaknesses to allow the mediator to begin developing a strategy to help both sides compromise. If key documents or deposition testimony are important, this is a good place to summarize them. But keep in mind that most mediators will not take the time to master the facts, so be brief and use a summary format. During the mediation, you can then bring out the details, and the mediator will be somewhat familiar with them already.
- Bring it home. Close your mediation statement with a suggested path forward. For example, if you think starting the mediation with both sides making opening statements would be helpful, explain why and what you hope to accomplish. If you think that opening statements might drive the parties farther apart given the hostilities to that point, or that the parties have seen their lawyers in action and it would waste valuable time, say so. But your conclusion should offer the mediator a suggested starting point to kick off the session and indicate how you hope it will lead to a resolution.
Make the mediation statement your roadmap to a successful settlement. This is your chance to get the mediator focused on how you think she can help you resolve the case. Be brief, be specific and be strategic to get the mediator focused and ready in advance of the session to help resolve the case.
Mark A. Romance is a partner with Day Pitney LLP in Miami, Florida.
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Samantha Lowe explains how to prepare position statements
Preparing position statements if you do not have representation at a mediation can be daunting. It really doesn't need to be and this blog sets out why they are in important and how to prepare one. Samantha Lowe is always happy to explain why a mediation position is helpful and what it needs to contain to help #unlockhorns
Preparation of position statements
The Position Statement is a key document for the mediator and provides an introduction to the dispute, sets the scene and decsribes key players. It can also set the agenda for the mediation by identifying issues that need to be discussed during the mediation.
A Position Statement should be a brief summary of a party’s position. Generally, it should be around 5 sides in length.
Position Statements should be provided by each party to every other party, and the mediator. The parties should endeavour to exchange Position Statements however the mediator can facilitate exchange if necessary. Exchange is generally done by e mail.
In addition to the Position Statement, a party will often want to share more information about their position with the mediator which is not to be shared with their opponent. The party may therefore want to consider whether they want to provide a confidential statement to the mediator only. What should a Position Statement do?
It should briefly explain a party’s position in any dispute, setting out their case and theagainst them or the defence to the case (i.e. the opponent’s position).
The aim of the Position Statement is to explain that party’s arguments and make the opponent think about their position and where they are coming from. It is not to prove their case.
If there are any misunderstandings in the case then the poition statement can be used to clear those up.
It should be a short document, that is clear and concise and to the point.
If there is a mediation bundle then it can refer to specific documents in that bundle along with specific paragraphs.
Points to include within the Position Statement
Introduce the parties and key players to the dispute;
Include a brief description of each party’s role in the factual scenario of the
dispute including their business and how the relationship with other party (if any) came about.
Make it clear that the document is without prejudice, confidential and to be used for the purposes of mediation only.
Provide a summary of how the dispute arose, including details of any relevant dates, events or contracts.
Provide a summary of the nature of the claims and the defences against them.
Provide a chronology of relevant dates and events.
Provide a brief summary of the factual issues that a court would have to resolve in order to decide the matter and explain the parties’ position on each.
If the issues have been rehearsed at length in correspondence between the parties or their advisors, references to key letters should be provided (and copies provided)
Set out a brief summary of the issues of law that a court would have to consider in order to resolve the matter, and their position on each.
If agreement has been reached on some points then set those out or explain what issues are not in dispute.
Quantum or Value of the dispute Some cases may not involve quantum and may be in relation to other matters.
If the claim carries a monetary value then this is to be included. There can be a range of approaches to the calculation of quantum. It is useful if parties say something about their views on quantum in the position statement; but in any event, they should at least consider quantum in the run up to the mediation.
It is useful to provide the following IF proceedings have been commenced, are pre action or have been issued:
A very brief outline of the current position in any proceedings that have been commenced.
Summarise the position on disclosure, witness statements, expert reports, trial dates, preliminary determinations, etc.
Summarise the position on any significant orders for costs might also be mentioned.
Costs If lawyers have been instructed set out the costs incurred and to be incurred.
Some parties prefer not to do this. If that is the case, then attend mediation with the following information;
What the bills are to date,
What is the current WIP
What are the estimated costs if the matter does not settle.
If lawyers are not instructed then it is important to have an idea of legal costs if the matter does not settle.
Attendees at the mediation Parties should provide:
A list of attendees (and the positions they hold)
If there is to be a change in the attendee list, this should be notified in advance.
Previous negotiations Parties should set out :
The history of any without prejudice negotiations
Attempts to settle matters previously.
What not to put in a position statement.
Parties should think carefully about including statements that might be seen as offensive.
Paties need to be aware that a Position Statement is a written record of a party’s position, and if it contains unhelpful comments, this may prove to be a barrier to good discussions.
If a party wants the mediator to understand at the outset their depth of feeling without running the risk of inflaming an already volatile situation, a separate document can be prepared in advance of the mediation, as a confidential brief.
Or of course the party can speak to the mediator in advance of the day set for mediation, or at the initial private meeting prior to the opening joint session.
Exchanging position statements.
Position Statements should be provided by each party to every other party, and the mediator.
Often a date for simultaneous exchange is suggested by the mediator or agreed between the parties.
In some cases a party will simply send their Position Statement to the other party as soon as it is ready, without requiring a formal exchange. In other cases, the parties may send their statements to the mediator, who will then send the statements to each party once both or all have been received.
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How to prepare a position statement
A position statement is a curious animal. It has a hundred different forms but only one purpose. It is the most used term to describe the short presentation which each participant will make at the beginning of most mediation meetings in order to describe what he/she wants out of the process.
The word "position" implies a situation which is inflexible, and therefore inappropriate for mediation. One of the strong characteristics of mediation is the flexibility of the process. Nonetheless, that is the term used. Some mediators may call it something different; some do not give it a specific name.
Let me take you back to the start of your dispute. It could be only a week or two ago but most likely you are looking back for months or maybe years. During the intervening time you and your conflict-party have been “negotiating” in one way or another to try to settle the problems between you. The chances are that your opinions, ideas, the facts you believe, the offers you have made, have varied a good deal over that time.
Circumstances too, may have changed. A participant's attitude to litigation might have changed. New management might have changed business priorities. New staff may be more or less competent as negotiators, a marriage might have fallen apart, damage suffered may have increased or reduced.
So now you are starting afresh with a clean slate, ready to instruct a mediator. It is therefore essential that each of you understands not only what outcome you would like out of this mediation but also what your conflict-party would like. If you are asking your mediator to help you to bridge that gap, you need to know exactly what the gap is and to be able to explain it reasonably accurately to the mediator.
Specifically, your position statement is not a red line. In fact it is not a line at all. It is rather, your perception of the ingredients of the dispute. It is a statement of your “interests”, rather than your “position” in defending those interests. It sets out what you hope to achieve during the course of the day.
Of course, as the mediation proceeds, it is hoped that you will be prepared to change your mind and to see alternative options open to you and at the same time to understand the position taken by your conflict-party – which may or may not be different from what you have assumed in the past.
Your position statement fulfils that purpose. Of course, it is an extremely important purpose.
So how will you explain your position?
The World is your oyster. You decide. Here are some alternatives
- Ask your solicitor to prepare a suitable statement for you to read out.
- Ask your solicitor to prepare a statement for him/her to read out.
- Prepare suitable statement yourself, for you to read out.
- Prepare notes for you to use and fill in as you speak.
- Prepare very short notes and speak mostly from memory.
- Just say what you want out of the meeting in 20 words.
- Hand a hard copy document to your conflict party and to the mediator instead of speaking your “position”.
- Allow, instruct, or encourage the mediator to arrange for both participants to send their respective written statements to the mediator with a view to his arranging for them to be exchanged a few days before the meeting.
- Applicable only to an online mediation (no face-to-face meeting) – mutual exchange of statements as above.
To keep the playing field level, the mediator will most probably support the most simple process both participants are happy with.
So what procedure shall we choose?
Now I’ll tell you about the various forms of this “curious animal”. At one extreme, your mediator might say nothing until the start of the mediation meeting, when she/he will explain the plan for the day and then invite one or the other participant to say what they want to achieve from the days meeting and how they justify that.
At the other extreme, a few days before your mediation meeting, your mediator will ask you for a document which sets out your case in a way that includes a list of important points. He/she will tell you that position statements will then be exchanged. In that way both participants have an opportunity, indeed, they are prompted, to think carefully what they do want out of the mediation and how they justify their proposals.
Equally, each participant has time to think carefully about what the other has said they want. That means each participant is in a better position to consider cunning plans both to counter some of the points made and to be prepared to concede others.
Between these extremes lie the other 98 forms this curious animal might adopt.
Most mediators will have a preference, but will almost certainly ask you and your conflict-party what you would like too, and will probably accept your instruction.
- How you present your case is entirely up to you. There are no prizes and no rules.
- Face-to-face negotiation is partly about presentation, body language and reactions. The first question must therefore be as to whether you feel confident to stand up and talk for a few minutes. If you have a problem with that, then you may not be able to relax enough to deal happily and confidently with the rest of the day. You could bring your solicitor or some other person to make that presentation or you could ask your mediator to work on the exchange of documents version of the process.
- If you can’t decide whether or not to make a presentation, consider the easiest way to speak – make some very short notes and just read them out clearly.
- If you have a lot to say, it’s a good idea to structure it very carefully so as not to encourage your conflict-party to interrupt out of boredom.
- Most mediators leave it to each participant to decide for how long they should speak. The usual range is between one minute and 15 minutes, depending on the number of hours booked for mediation and of course the complication of the subject matter.
- You may well ask how it is that any mediation can result in settlement when the participants are invited to start by firmly stating what they want. The fact is that your position statement must be regarded simply as a starting point. You are explaining the dispute. Saying what you want is an essential part of that but that should not mean you will refuse to go home without getting what you want. What you say should not be regarded as written in concrete.
Considerations for online mediation
In theory at least, it is perfectly possible to present a position statement at an online meeting in exactly the same way as I have described above. However, it is harder for a mediator to control an online meeting than a face-to-face meeting. I would therefore always recommend a process which involves written position statements as described in this article.
There is no reason why your mediator should not start the online meeting by giving each participant a further opportunity to refine what he/she wants, but at least the participants will not be in any doubt as to the basic propositions put forward by the other of them. You may find it useful to read my next article on “Making the Best of Online Mediation” .
What to put in your position statement
In considering settlement before the mediation meeting has even started, there is a fine line to be drawn between being helpful and cooperative on the one hand and making concessions too soon on the other hand. You may also decide to hold back some concessions in order to be able to propose them verbally at the start of the mediation process. When you make concessions, consider constructing them around conditions.
- In preparing your statement, remember that a mediation is “a negotiation with a referee”. You will not get what you want unless you know what that is and you are prepared to set it out clearly and logically. You may think your conflict party already knows what you want but if you fail to make it clear, then the mediation process will start with both sides talking about different things.
- Follow on with an explanation of why you claim, believe or propose the points you have made. Why is your argument stronger than that of your conflict party? Why you think a judge would be more likely to accept your version than that of your conflict party. What exactly is being argued about. What is your evidence. What are the actual issues to be resolved? What has been agreed already?
- Try to differentiate between disagreement over specific facts; over different understandings of the law; over different possible solutions, and so on.
- Some history of the dispute is probably essential for the mediator’s understanding of what the dispute is all about. Keep it concise. Avoid a blow by blow account. This meeting is about looking forward not back.
- Continue by explaining exactly what you want out of today’s meeting. To express that another way, explain exactly what concessions you would like the other participant to make in order for you to go home happy and satisfied.
- Say what exactly you want from the mediation process. Give your reasons. Quote sources if appropriate. Provide evidence if appropriate – for example photographs, reports, plans.
- Consider each strand of your dispute separately before re-assembling them as a proposal.
- Finally, pull in the strands of your proposal and explain exactly what you would like as a settlement. Be positive and precise both in your requirement and your concessions.
The best attitude
The golden rule is that your position statement gives you the opportunity to make a fresh start. You should treat it as if you were explaining your position for the very first time someone who will not understand it unless you explain clearly and simply. That makes you free of the baggage involved in what you may have said in the past.
- Avoid dredging up bad memories. Everything that’s gone before is baggage. You cannot expect to achieve a settlement which is satisfactory to both of you if you either stick to everything you’ve ever asked for or alternatively feel under a moral obligation to abide by everything you’ve ever conceded. Conversely, listening carefully to what your conflict-party says is also extremely important. There are very few disputes when the mediation meeting does not produce surprises to one or the other of the participants.
Adopting this mental attitude also helps free you from accumulated emotional baggage. Leave that behind too.
- With your new found freedom at the front of your mind, try brainstorming ideas with yourself. For a while, put to the back of your mind what you think the law might provide if you went to court. Few disputes are entirely about money. Consider the downside of delayed settlement, lost reputation, the opportunity cost of your next project, the loss of marketing opportunities because your brain is tied up in this dispute. Consider the loss of your staff time and so on.
- Now do that same brainstorming operation with regard to your conflict-party. I can tell you with hundred percent certainty that if you work on this strategy you will come up with variations which either add or reduce value in some way which you have not previously considered. You will probably have read already that mediators are supposed to come up with these brain-waves. Mediators can and do, but let’s face it, you know an awful lot more about your life or business than any mediator ever will.
- If the dispute is complicated, try to separate out the strands.
- It is helpful if you can separate facts from hypotheses and opinions.
- As you go, introduce people by name and job.
- Set your story out as a chronology.
- At all costs keep your words and tone civil, blameless and objective. Avoid threatening or uncivil language.
- Avoid adding irrelevant items to the history in order to discredit your conflict party or “make a point”. This is particularly important in disputes relating to relationships, private family affairs, between directors, and other situations where there is a relationship beyond the commercial one.
- Keep it logical and factual.
Drafting tips for your position statement
- If you have brought hard copy documents to prove or illustrate points you want to make, now is the time to use them. Reports, plans, figures, photos, can all help to make your case credible.
- For a short email-only case, your entire position statement should be from 50-250 words. For an all day mediation, it might run to 2,000 words. Keep it logical and factual. As a guide, if there is a point you will want to make in the course of the mediation, make it first in your position statement. That gives the mediator and your conflict party time to take in and consider what is important to you.
- In case you wondered – the strategy you see in a TV drama when some vital evidence appears at the 11th hour, does not work in mediation.
One final information point: the mediator is not in a position to help you to draw your position statement.
Once you have drawn your position statement, you may be interested in moving on for more information about what happens on the day. We have different pages for online mediation on the day, on the one hand and face-to-face mediation, on the other hand.
Exchange documents or present verbally?
I have assumed so far that your position statement will actually be a presentation. If even just one of the participants prefers to exchange a written document some days before the date of the meeting, then the mediator may well agree to that. In those circumstances he/she will ask the participants to send their position statement to him/her for simultaneous exchange.
The benefit of an exchange of files by email is that both participants have plenty of time to assess what the other is saying and to consider it in the context of their own requirement. The exchange has the effect of extending the mediation time by allowing them time to think, to confer with others, including their legal advisers, and to think up new options and possibilities for settlement – all, before the mediation meeting even starts.
If position statements are exchanged in this way, then the mediation meeting will start with each participant asking questions of the other.
The downside of pre-meeting exchange is the reverse side of the coin representing the benefit. Each side has the opportunity to produce myriad reasons why his/her conflict-party is wrong, or their assumptions are invalid, or whatever clever reasons they might come up with. However, it is likely that the mediator will be prepared for this and will strongly discourage a “legal commentary”.
Before either participant speaks, it is most likely that the mediator will have warned that he/she expects each of them to stay silent while the other is talking. As a result, it is almost certain that one or the other of you will have accumulated a few questions. The Mediator too, may ask for clarification.
The Mediator may manage this questioning process either by mentioning it in advance or simply by letting it happen. Either way, you need to be prepared to answer a few questions. The mediator will control this process to avoid a heated exchange. It is in your best interest to stay cool and leave the ranting to your counter-party and the obligation to settle it, to the mediator.
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Drafting an effective position statement for mediation: a commercial mediator’s view
May 1, 2019 | 0 comments
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 protected] .
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Example Position Statement
- does the case hinge on the facts – a section for Factual Matrix;
- are there certain issues which need to be resolved – a section for Issues;
- is the offer history particularly complex – a section for Offers;
- if there are difficult areas of case law and interpretation a section on the Law.
- If liability is against you, apologetic setting the scene for a settlement
- If they have difficulty on overcoming a clause in the contract, emphasise its effect and that it cannot be over turned in law
- If their defence is based on implausible factual evidence, stress the strength of your own evidence on this point
- Include a factual summary.
- If the sequence of events is essential then a chronology would be helpful.
- Explain what are the legal issues in dispute
- Explain what are the factual issues in dispute
- Explain what is your / your Client’s position on those factual issues?
- The nature of her acts,
- The extent of the property of which she is disposing
- The nature of the claims on her
- evidence over and above mere persuasion.
- that the coercion and pressure were to such an extent that it overpowered the freedom of action by the testator.
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It is normal practice for the Position Statement (“PoS”) to be sent to the mediator several days before the mediation so that the mediator has the
Mediation Position Statement. This statement is made solely for the purposes of a mediation of this dispute. It is without prejudice to any proceedings and
Mediation is conducted by the parties with the assistance of a neutral third party (the mediator) who facilitates a resolution. This Checklist covers the key
For example, are there technical ... additional, separate confidential mediation position statement which is prepared for the mediator's eyes only.