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In Place of Strife

The Mediation Chambers

The Position Paper - how to make it effective

The Position Paper has two main functions:

1. Informing the mediator (who will probably know nothing of the case, which you have lived with for quite some time).

2. Informing and influencing the other party(ies).

Informing the mediator. The best Position Papers are generally no more than 10 pages and sometimes far less. They should contain the following:

  • A concise outline of the principal issues (separating the wood from the trees). Where key documents are referred to, these should be provided and cross referenced and highlighted.
  • The history of any proceedings and of any prior offers or negotiations.
  • Information on costs to date and estimates going forward.
  • A list of those expected to attend the mediation.

Informing and influencing the other party(ies). The objective is to ensure there is no misunderstanding about your client’s stance and to influence the other side’s risk analysis. This is best achieved by:

  • Identifying the key issues where there may be scores of different issues at large.
  • A measured, objective description of your client’s position, stressing where the client’s position is strong, acknowledging where it is less so.
  • A non-confrontational tone, however firm the underlying message. Confirmation of a willingness to seek agreement in good faith is likely to ensure an equivalent commitment from others.
  • Identifying those who will attend. (The importance of this cannot be over-stated and will be the subject of a future Top Tip of its own.)

Mediator: Mark Jackson-Stops

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