What is a position statement?
A position statement is a document each side prepares, exchanges with the other, and copies to the Mediator.
The word “position” implies a situation which is inflexible, and therefore inappropriate for mediation, where the essence is flexibility with a view to achieving settlement. Nonetheless, that is the term used
Writing your position statement
As the term implies, the purpose is to provide a document which pulls together all the threads of what you think the dispute is about this document will guide both your conflict party and the mediator once they both have it. That is not to say it is written in concrete. As the mediation proceeds, of course it is hoped that you will be prepared to change your mind and to see alternative options and of course to understand the position taken by your conflict party – which may or may not be different from what you have assumed in the past.
- Start your position statement with a concise history of the dispute finishing with a summary of how you currently see it. Explain clearly what you are claiming or defending and how and why - even if you have been negotiating with your conflict party for some time.
- 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.
- 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 do 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 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.
- Finally, set out your proposals for settlement. That could be anything from complete collapse of opposition from your conflict-party to a substantial concession by you because you can see that it’s the only way to avoid litigation.
Consider each strand of your dispute separately before re-assembling them as a proposal.
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 possibilities in order to be able to propose them verbally (dramatically?) at the start of the mediation process.
- 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 document civil, blameless and objective. Avoid threatening or uncivil language. Avoid expressions like “of course” and words like “obviously”.
- 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
- In your statement, refer to essential documents which prove some point you make. 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 3,000 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 all of the points in your case.
- 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. Any help by The Mediator in this particular process could be interpreted as assisting one party at the expense of the other.
The mediator might want to discuss with you
Some mediators will contact you by telephone or email, not as a matter of course, but in circumstances where there seems to be some conflict with information previously given, or maybe the mediator simply wants to ask a few questions for clarification.