12 Oct Preparing a Position Statement: Will it make the boat go faster?
A point arises just before a mediation when a representative is invited to prepare and exchange a Position Statement. What should it say?
Often representatives will have developed a style over time which often boils down to the following: this process is confidential; we have a very good case; you don’t and if we don’t resolve the case (and give us what we want) we will pursue it – sometimes ‘vigorously’ – to its conclusion. The negotiation therefore starts with something of a sabre rattle. And we can become so set in our ways that we trot out the same formula case after case.
As a mediator speaking to a party about what they think of their opponent’s Position Statement when it is written in such terms, they will shrug their shoulders and say ‘as expected’, and the conversation will move on. Sometimes the content can antagonise and wind people up, and make their own view more entrenched. This can be one of the issues with an early joint session too. Sometimes attendees wonder why the real business in mediation takes some hours to reach – that can be because there needs to be a period of trying to calm people down before focusing on the way forward.
While it is perhaps understandable why people adopt a ‘don’t blink first’ approach to negotiation, it is perhaps something of a missed opportunity. So, what could a Position Statement say?
The first thing to think about is why are you preparing a Position Statement? It should be aimed at two audiences: the mediator and the other party and their representatives.
For the mediator, the priority is to get an overview of the dispute, the stage reached, what (if any) proposals have previously been made, and what would appear to be the impediments towards reaching an agreement. This will assist the mediator in focusing on key issues on the day, and guide pre-reading of the documents supplied. This can be particularly helpful as statements of case prepared for litigation and voluminous documentation may contain irrelevancies and red herrings.
For the audience of the other party to the dispute, when preparing a Position Statement it is worth bearing in mind the approach used by GB rowing teams in years past.
Their guiding principle in making all sorts of decisions, from selection of teams to kit, training programmes and how to spend their time when not training, was – will it make the boat go faster? This provided a constant reminder of their ultimate purpose and ensured clarity in decision making.
To adapt that approach to mediation – does your Position Statement make resolution more likely? This sounds obvious, as that is (presumably) the goal of the mediation process, but sometimes there is a temptation to fall back and repeat the same themes that have featured in correspondence and statements of case previously.
It is like someone grabbing a karaoke microphone to perform an old favourite song of theirs – they may enjoy it, their friends may enjoy it, but it is probably less enjoyable for anyone else in attendance!
Your own approach to drafting a Position Statement may depend on your personal style or you may have just adopted the common approach to such documents.
I would suggest that it is always worth considering how the message you are delivering will play with the other party. If you are unsure, flip it around. What would you think if the opponent adopted the same tone and said the same things to you as you are planning to say to them? Could it antagonise? Does it ring true? Does it set the right tone for constructive discussions, particularly if you need the other party to give ground?
Sometimes, a really effective Position Statement is one written in a constructive tone, clearly expressing a willingness to try and reach agreement (within parameters of course) and is less formal than statements of case. It is an opportunity to persuade by explanation rather than being overly ‘finger jabbing’ and antagonistic. Even if the other party doesn’t agree with your conclusion it can be better to explain the reasoning behind a view and can aid their understanding.
It possibly contains some new information, which can be better presented here than turning up on the day with it and taking an opponent by surprise. It can also give some ground on certain points for the purposes of discussion that demonstrates a willingness to be constructive. It can be disarming for an opponent to receive such a document if they are expecting a more usual belligerent re-statement of a party’s case.
Often in mediation I will get the parties lawyers together with me at some point in the day if there is a blockage to discuss. Those discussions are (usually) friendly, respectful and constructive – even if the parties have been ripping each other to shreds in correspondence and in the Position Statement. So adopting such an approach in a Position Statement might assist too.
All of this helps the focus on the joint problem: the parties are in dispute and need to work together to solve it. In mediation no one can solve a problem alone, so starting a positive dialogue early can only assist. It sets the scene for peace talks and potentially starts the real business of reaching agreement more quickly.