Position Statements for Mediation
The position statement is not a mere formality:
- It communicates your objective analysis, pre-mediation, to the mediator
- It gives the opportunity to make constructive points to the other party
- The statement is not a pleading - the parties already know the legal arguments, and the mediator can read the pleadings.
The statement should set out the issues, not just the legal ones, that are important to you and your client.
- Explain the case as if you were talking to a non-lawyer.
- Set out the background briefly, then how the dispute arose.
- Explain how far through the litigation process you are, and any settlement offers that may have been made.
- If relevant, include 'soft' items, such as the need for an apology or acknowledgment of some sort, or other things that a court could not order.
- Is an ongoing relationship important, could there be business in future? Or is a clean break genuinely the preferred option?
Keep it concise - limit it to half a dozen pages or so.
Include a chronology if appropriate.
Include case law only if truly relevant.
Paginate the bundle and refer to page numbers in your statement as appropriate.
Use names or initials if possible, rather than e.g. "The Claimant" or "The Part 20 Defendant". Names are much easier to follow.
Ideally, exchange statements with the other party.
Prepare a separate "eyes only" document for the confidential use of the mediator:
- This should set out your objective analysis of the strengths and weaknesses of your case, and the other parties' cases.
- Include concessions your client might be willing to make, and say if they are dependent upon concessions from the other party.
- If you recognise that your client's legal position is less than strong, acknowledge this to prevent the mediator spending time on that aspect on the day. The other party will not know but the mediator will be better prepared.