by Christina L. Scott
Mediation position papers can be very helpful to the mediator in civil and commercial disputes. These papers are usually confidential in nature and the contents are never revealed to the opposing party without express permission. Position papers, however, do not have to be confidential. Both parties can agree to exchange papers with each other and the mediator. When drafting a position paper, be sure to write it persuasively and not just provide a restatement of your claim. Here are a few tips for an effective position paper.
Clearly outline the main issues and your position on each of those issues
Always summarize the main arguments which support your position and detail any relevant facts. Feel free to attach any helpful or relevant documents. Also consider pointing out the main weaknesses in the other side’s case including any unhelpful facts, documents, or the lack thereof.
Include any prior settlement offers
Sometimes parties are hesitant to tell the mediator about previous offers and counteroffers. Providing this information, however, can be helpful in giving the mediator background of prior negotiations. It also helps the mediator to know which party has the proverbial “ball”. Be sure to let the mediator know if prior offers have changed or are no longer on the table and the reason why.
Address any weaknesses in your case
This approach can help the mediator fully understand both sides of your claim. Remember that your papers are confidential so therefore you have the freedom to speak candidly.
Express a willingness to engage with the mediation process, and to try to find an acceptable settlement
Statements like these set a positive tone for the mediation day and signals to the mediator that you are ready to move forward. If the papers are mutually exchanged, a statement like this can encourage the other side to enter the mediation with a similar mindset.
Be sure to allow plenty of time for the mediator to review the papers. Three or four days prior to the scheduled session is usually adequate.