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

how to write a position statement for mediation

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.

The Dispute

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.   

how to write a position statement for mediation

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how to write a position statement for mediation


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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

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.

Some considerations

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.

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.

Adopting this mental attitude also helps free you from accumulated emotional baggage. Leave that behind too.

Your presentation

Drafting tips for your position statement

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”.

Answering questions

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.

Where next?

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how to write a position statement for mediation

Emma Gooding Mediator

Drafting an effective position statement for mediation: a commercial mediator’s view

May 1, 2019 | 0 comments

how to write a position statement for mediation

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.

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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how to write a position statement for mediation

Example Position Statement

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