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.