Mediation statement, position paper, summary – is the lack of a defined description a matter of semantics, or something more? So often, it will comprise a précis of the written pleadings, a section on why that party is almost certain to win at trial, followed by ‘nevertheless we are approaching the mediation in the spirit of settlement’. But who is that document for? And if we don’t know who it’s for, how do we draft it effectively?
When mediation is all about moving away from formal stated positions to the power of discussion, face-to-face meetings and compromise, how do we justify the cost of producing something more akin to a court document? What is the purpose of a mediation statement and is there a better way to use one?
Why it’s good to talk – not just read
Briefing the mediator is absolutely critical, but how to achieve that is up for debate. Personally, I much prefer to be briefed on the telephone (by the solicitors and their clients) before I read the documents. For me, mediation is about the people attending, their sensitivities, their wants and needs – things that are rarely articulated in writing. When I speak to clients direct, I’m better prepared and have time to think about how to manage difficult situations, or particular emotions.
And in telling their version of events direct and by explaining what’s important to them, clients also come better prepared to mediate. Instead of spending the first hour or so explaining their position to the mediator (and the consequent upset, anger or frustration this can cause), clients arrive knowing they’ve been heard and understood and are in a better place from which to move forward. Tears on the telephone aren’t uncommon, but I have yet to see a position statement display that level of emotion. Of course, I’ll still read a mediation statement if one is prepared, but rarely do I find it critical against that background.
Preparing the client for compromise
A properly prepared client is key to a successful mediation. However, the psychology of negotiation suggests that a mediation summary prepared to be exchanged with the other party is actually counterproductive. According to Dr Robert Cialdini, a professor of negotiation, writing a document focussing on the strength of a client’s case will only serve to entrench that client’s position further.
Speaking from personal experience, as a client turned mediator, reading how good your case is doesn’t put you, or those mandating, in the best frame of mind to compromise. If the aim is client briefing, far better to produce a bespoke document for them that highlights strengths, weaknesses and key negotiation strategies, rather than one to be exchanged with the other party.
A message to the counterparty
Perhaps because of my background, I believe that one really useful function of a position statement is the opportunity it gives to speak directly to the client on the other side. You can guarantee that if the client party reads any documents at all, it will be their opponent’s position statement. But you can also be sure that that client won’t be persuaded by a restatement of the pleaded case – they’re too heavily invested in their own pleaded position. Instead, is there a particular message that you want to give before the mediation? Is there a point which it would be useful for them to have thought about beforehand? Perhaps a position statement isn’t necessary for your preparation, but it could be a tool to ensure your counterparty is properly prepared.
Rethinking the role of position papers
Mediation preparation is key, but the steps undertaken must be both useful and cost effective. So rather than automatically assuming the need for a position statement, perhaps we need to be smarter at embracing the flexibility of mediation by asking whether one is needed and if it is, then who is it needed by?
If your client or mediator does want a formal briefing, why not consider a confidential brief outlining the points that are particularly relevant? If the documentation is voluminous, or the pleadings complicated, why not prepare a joint summary or chronology and share the cost? If there’s an important point you think the client on the other side hasn’t understood, leaving it to a few days before the mediation to tell them might not give them time to act on it, particularly if their mandating process is clunky. One document can’t possibly cover all these bases.
So no, it’s not just a matter of semantics. Decide upon the need and purpose and the name will follow.