A mediation position statement in theory is prepared in advance of the mediation and sent to the mediator – and sometimes exchanged with the other side.
Well so much for the theory. In practice one of the following often happens:
- A lawyer says the pleadings will suffice (“I haven’t got time to prepare one.”).
- The statement is emailed on the night before the mediation.
- It is a bland re-hash of the pleadings telling me and the other side nothing new.
- It is hand delivered on the morning of the mediation and it’s a bland re-hash of the pleadings telling me and the other side nothing new. The other side take this as a deliberate attempt to undermine their preparation and we lose two hours of the mediation calming everybody down.
The following advice is for lawyers in the real rather than ideal world. I’ll tell you what I think the mediation position statement is for which makes it self evident what it should contain. Feel free to download my mediation position statement for your own use.
What is it for?
- Identifying what you think the issues are between the parties.
- Explaining to the other side why they should change their position.
- Telling the other side how much the dispute has cost in legal fees so far and the estimate of costs to trial.
- Informing the other side who is attending on the day.
I will always need more information than that but I’ll get that in phone conversations with you before the mediation. I’ll find out what the case is about from those discussions and from reading the bundle you send me. If you have already prepared a chronology and case summary then put them in the bundle but I don’t want to create extra work for you.
Identifying the issues.
It is worth spelling this out. The thing you think is a burning issue might not even register with your opponent and vice versa. One of the very useful side effects of mediation is that it educates you about your opponent’s case.
Why should your opponent change their position?
They are only likely to do this if you can persuade them it is in their interests to do so. You have to persuade them, help them even. If they don’t shift position your client is going to get nothing out of the mediation. Having difficulty with this? – then you need to review your risk assessment and negotiation strategy and even ask why you are mediating.
Costs.
The parties need to know what this is all costing. Usually mutual interests can be identified which lead to settlement but sometimes when the final gap needs closing it can help to take a look at these figures.
Who is attending?
You must let your opponent know who is attending in advance to avoid any arguments or objections on the day.
Let me know what you think, post a comment.
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