Samantha Lowe explains how to prepare position statements

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

Introduction

1. Introduce the parties and key players to the dispute;

2. 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.

3. Make it clear that the document is without prejudice, confidential and to be used for the purposes of mediation only.

The Dispute

1. Provide a summary of how the dispute arose, including details of any relevant dates, events or contracts.

2. Provide a summary of the nature of the claims and the defences against them.

3. Provide a chronology of relevant dates and events.

Issues

1. 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.

2. 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)

3. 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.

4. 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.

Proceedings

It is useful to provide the following IF proceedings have been commenced, are pre action or have been issued:

1. A very brief outline of the current position in any proceedings that have been commenced.

2. Summarise the position on disclosure, witness statements, expert reports, trial dates, preliminary determinations, etc.

3. 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;

1. What the bills are to date,

2. What is the current WIP

3. 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:

1. A list of attendees (and the positions they hold)

2. If there is to be a change in the attendee list, this should be notified in advance.

Previous negotiations

Parties should set out :

1. The history of any without prejudice negotiations

2. 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.