Practitioners are taught that there are certain things that are part of the mediation process, one of which is the exchange of position statements. There is however no legal or other regulatory requirement for them. Having seen hundreds of position statements we thought it would be helpful to conduct some analysis as to why parties do them, what they hope to achieve, what they actually achieve and whether they can be improved.
Many thanks to those of you who responded. There was a good response and it is possible to detect certain trends. The full results of the survey can be found at this link: Position statement survey results
In this article Jacqui gives a summary of the results and sets out some thoughts that The Property Mediators have to improve the mediation process.
Why do position statements?
One of the main reasons given (54%) is ‘to get my point of view across to the other side’. Comments reflect that if there have been no formal statements of case, or the mediation is early in the dispute, that this can be very helpful. The most popular answer (61%) was ‘to give the mediator information that is not apparent from the papers’. Perhaps somewhat alarmingly, 14% do them ‘because that is just what you do – it is part of the process’.
Are position statements any use?
Bearing in mind that a large number of position statements are done to influence the other side, it is ironic that only 12% of respondents said they usually find the other side’s statement helpful! 35% rarely did, whilst 48% said they only sometimes do.
When asked what was helpful the most common reasons given were concessions made by the other side for the purposes of negotiation, identifying additional matters outside the legal dispute that might affect it or provide opportunities for negotiation, explaining a client’s stance and any identification of options for settlement. Costs information was also said to be useful.
Only 17% of respondents usually put forward possible solutions. 41% did so ‘sometimes’ and 25% ‘rarely’. So it would seem most respondents don’t do what the other side would often find most helpful. There seemed to be a reluctance to do this for ‘tactical’ reasons. There was a general sense of not wanting to ‘reveal your hand too early’ or show ‘weakness’.
Are position statements counterproductive?
Whilst 37% thought statements rarely had a negative impact on negotiations, 48% felt that they sometimes did. There was a general dislike of statements ‘that read like skeleton arguments’ and those that were ‘aggressive’ and ‘hostile’.
Many thought statements could cause the parties to become ‘entrenched’ making it harder to back down from a position. Many reported clients being ‘pushed further apart’, ‘doubting the point of investing in the mediation’ and in one case ‘not proceeding’.
When asked if the process would be more or less effective without statements, 11% thought more effective, 56% less effective and 33% thought there would be no difference. However the comments reiterated the shortfalls mentioned above and the fact that more people would prefer positive suggestions for resolution. Several mentioned that it might be helpful to send confidential statements to the mediator but when asked if they did this only 13% ‘usually’ did. 37% did ‘sometimes’ with 27% ‘rarely’ and 23% ‘never’.
Often one of the main barriers to settlement is the costs parties have incurred. Those costs include preparing for the mediation and producing positions statements. On average 26.5% of statements cost £100-£500 (all figures as exclusive of VAT), with 42.5% between £500-£1,000 and 29% over £1,000. Bearing in mind all that is said above I wonder whether clients would consider this good value for their money?
Maybe it is time we changed the name from ‘position statements’ to something more appropriate such as ‘mediation statements’, and made a change to their purpose and contents to make them far more constructive and helpful to everyone. Things that we suggest would be helpful to include in a mediation statement are as follows:
- Expression of a willingness to negotiate and settle the dispute.
- Up to date figures, eg valuations, loss claimed, interest, debts, costs to date and those projected to trial.
- Acknowledgement of the other side’s position, wants, needs and emotions.
- A statement of what you (your client) wants / needs rather than what they are ‘entitled to’ and an explanation of their interests and emotions.
- An expression of any points you may be willing to concede.
- Suggested ways that the matter might be settled. This does not necessarily involve revealing your final figures / bottom line but may set out some ideas for settlement including matters that a court could not order.
- Exploring other matters that may be relevant / negotiable that are not the subject of the proceedings.
- Confirm that there is authority to settle and what limits there are and how they might have to be overcome at the mediation, eg. telephone calls, subsequent ratification by a board etc. It is best to have this dealt with up front.
- Make any time restraints clear.
It might not always be appropriate to share all of these with the other side but don’t forget the opportunity to impart information confidentially to the mediator. At the Property Mediators we offer a questionnaire for clients to answer which should draw out these points (See the Documents page). These can be sent to the mediator confidentially and may form a basis for what you wish to reveal to the other side.