Preparing the Perfect Position Statement

By Peter Brewer

As a general proposition, parties want to prepare and mediators want to see a position statement ahead of any mediation. However, get it wrong and a position statement can cause much more harm than good.

Mediation is all about collaboration and compromise. The mediator is not there to form a view on the merits of either party's case and is not there to make a final decision. The mediator is just there to help the parties to get a place where they can reach an agreement.

By the time a case gets to mediation, there will already have been some exchange of documents between the parties. In almost every case, there will have been pre-action correspondence. If the relevant protocols have been followed then that correspondence will have set out the parties positions in quite some detail.

In a lot of mediations, proceedings will have been issued and therefore there will be pleadings. These pleadings will be positional (particularly the defence and any reply) and it will be easy to establish from those documents what one party says about the allegations made by the other.

The mediator is not there to test those allegations or establish whether or not they are true. All they need to know is that the allegations exist. They also need to know broadly what the case is about, and who the parties are (and perhaps what the relationship is between them).

In their preparation for the mediation day, most parties will want to prepare a confidential position statement, for the mediators' eyes only. This document is absolutely critical for the mediator, as it gives them a real insight into the parties true positions that would be impossible to glean just from the pre-action correspondence or the pleadings. A confidential position statement ought to be drafted as honestly as possible, and a good one will set out the strengths and the weaknesses of the parties' case, and a brave party will say what they want from the mediation (perhaps even giving a figure that they would be prepared to settle at). They may also want to discuss things that are relevant to the mediation but are not obvious from the papers (perhaps the other party's historic behaviour is insightful, particularly in the context of a dispute within a family business, where the relationship between the parties is likely to be layered and complex).

The bargain that the mediator enters into for this honestly is not to reveal anything within the confidential position statement without that party's consent.

The bundle is also critical, and careful thought needs to be given as to what the mediator needs to see, what is not directly relevant and what can be brought on the day, to be shown to the mediator if required. As a general rule, the following ought to be in the bundle:-

• Letters of claim and letters of response;

• Pleadings;

• Procedural Orders (this will assist the mediator in understanding what stage the case has got to, and what else needs to happen to get the case to trial);
• Some information on costs. Cost budgets are often very useful, as they show what has been incurred and what needs to be incurred to get the case ready for trial. Understanding the economics of a case is crucial both for the parties and for the mediator.

Evidence ought to be avoided unless it is absolutely crucial. No mediator wants to spend their valuable preparation time reading through lever-arch files of invoices if it does not assist them in gaining an understanding of the case.

Expert evidence (if any has been obtained) can be helpful to the mediator and can be included either in the bundle or with the confidential position statement (if a party is reluctant to disclose it). The “mediators bargain”, described above, applies to such a document, but if the mediator thinks it might be useful to disclose it in the context of the mediation (a process which is both without prejudice and confidential) then they can discuss it with the party.

What then of the position paper? This needs a lot of thought. Consider:-

• If the bundle and the confidential position paper have been well thought out, is another position paper of any assistance to the mediator?
• Do the parties prepare a joint position paper that just summarises the issues? The process is meant to be collaborative, after all!
• Will a list of issues (like the one prepared ahead of the case management conference in High Court Claims) be sufficient, bearing in mind that the mediator just needs a taste of what the dispute is about.

Try and avoid:-

• Overly long position papers. The mediator has to read it, and they only have a limited period of time to prepare for the mediation;
• Being too positional. This seems like an odd thing to say when describing a document called a “position statement” but being confrontational does not help. One party knows that the other party thinks their case is rubbish and likely to fail at trial because they will probably have already said that in the correspondence and the pleadings. This is a process that hopes to reach a compromise, so repeating that in the position statement won’t help achieve that objective;
• Being too legalistic. The mediator probably does not care what case law says disputes like the one they are mediating. The mediation is all about settling this matter and in that regard, anything is possible and historic cases from the eighteenth century won’t change that. Also, the mediator does not need to be persuaded by the applicable law because they are not there to make a decision.

A good position statement can assist the mediator enormously if it is well-considered and drafted by someone with real insight into what the process is actually about. This is because it will give the mediator oversight on the dispute and will direct them to the most relevant material to assist them in helping the parties get to a compromise.

A bad position statement however can be destructive; it won’t help the mediator at all, particularly if they have had to read along and largely irrelevant document, and may give the other party the impression that the party giving the statement does not want to engage in the process in good faith and in a genuine attempt to settle the dispute. You don’t want the other party wanting to withdraw from the process, which you will have spent time and money preparing for, simply because your position statement is too aggressive.

The parties are in the process to try and reach a compromise if one is possible and it is important that the preparation bear that (hopefully!) common purpose in mind.

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