Writing your opening position statement

The Mediator will ask you for a position statement early on with a view to exchanging it with your ex-partner as well as for understanding your story and the history of the dispute.

Your position statement is your best opportunity to make your case. It is worth a great deal of your time and care.

The purpose of your position statement

A position statement is a summary of where you are at today. It also provides the same information to the Mediator for his starting point in helping you to resolve your problems.

The purpose of putting all this information in a single document at this stage is because over the time leading up to your separation so much has been said or done that neither party can accurately differentiate between offers, suggestions and refusals.

First, your position statement informs the mediator and your conflict party of the points you see as issues in the dispute and as to what is your position on those issues.

Second, it provides your opportunity to explain and justify your position.

Third, it is an opportunity for you to suggest reasonable settlement options including, concessions you might specifically be prepared to make in exchange for concessions by your ex.

In some cases you will probably not think that there is any way of settling a point. For example, there is no obvious compromise to the question of where the children’s main home shall be. It must be with either you or your ex-partner.

Your position statement does not have to mention matters you have firmly agreed, but you may wish to confirm any such matters where you think there might otherwise be some future misunderstanding.

How to write your position statement

Your separation will inevitably involve discussion of a very large number of aspects of your lives.

You don’t have to write a long essay about each of them in your position statement if you already have a list or notes in some other form.

It is essential that you remember that your position statement will be exchanged with your ex-partner. If you want to provide information to the Mediator confidentially, you should use some other means.

When you have covered the history of the dispute, set out what you personally want from the mediation of your divorce. It’s not necessary to be aggressively precise, but you need to give the Mediator sufficient detail for an understanding of how the differences between you and your ex-partner might be resolved.

For example, if it is important to you to sell the matrimonial home, then you should say so and explain why. If you want to contribute, or pay entirely for the cost of living of your two small children who are likely to have to remain with their mother, then it’s a good idea for you to have some calculation of your own as to what that cost might be.

The exchange of information of this nature will bring the two of you to mediation with positions much closer than they would be if you started the mediation process with a clean sheet of paper.

It is usual to complete your position statement with your ideas of how you see your disputes settling. It may not be a good idea to start with concessions if you doubt that your ex-partner will do the same. However you can still put the deal on the table on the basis that “I will do this, if you will do that”.

Using your position statement as an opening statement

When the Mediator opens the discussion he will give you the opportunity to state your case in any way you like.

When you first sit down at the mediation session with a view to negotiating an outcome you want, you may well feel nervous when the Mediator suggests that your first contribution should be to “make a speech”.

Because the circumstances are probably unique in your experience, you may have this feeling even if your job entails constant public speaking.

A good way to avoid any nervousness is to structure your position statement in such a way that it doubles as the text of your verbal statement. You still don’t have to read it out word for word, but the fact of having it there in front of you will give you a great deal of confidence.

It will probably contain far more material than you would want to say at the beginning of your mediation session. We merely make the point that the document and the speech can be to some extent interchangeable.

If, for any reason, you find you are unable to express yourself well in typing up your story, just write manuscript notes. Your mediation meeting is an informal process.

General considerations

So that the Mediator knows who you are talking about it is a good idea to introduce people in your story, by name and job.

It is easier for the Mediator to understand the history if you set it out as a chronology. Actual dates may not be relevant but at least it’s helpful to have things in time order.

In preparing your statement, remember that a mediation is “a negotiation with the referee”. The Mediator has enormous experience of dealing with people and problems of every sort but that does not mean he is in a position to take sides beyond providing a “level playing field”.

It will get the mediation meeting off to a bad start if you have just exchanged position statements which are antagonistic, brutal, insulting and so on. Avoid adding items to the history in order to discredit your conflict party or to make a point.

Drafting tips for your position statement

  • Keep it logical and factual.
  • You might find that some of the points you want to make in your position statement can be supported by external evidence. Reports, plans, figures, photos, can all help to make your case credible.
  • At all costs keep your document civil, blameless and objective. Avoid expressions like “of course” and words like “obviously”.
  • So how long should your position statement be? We cannot answer that. If you have already agreed pretty much everything and have booked a session with the mediator merely to tie up loose ends and give you confidence that you can instruct your solicitor for a consent order then your position statement might run to 400 words. On the other hand if your affairs are complicated then 5,000 words might not be unreasonable.