Writing a position paper for mediation

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Writing a position paper for mediation

In each case, include experts and counsels fees, showing them separately. It is usually counter —productive to include offers on position papers. The other party will not know that you have issued a Confidential Paper but the mediator will be better prepared. The secondary aim is to inform the mediator and to let the other partys solicitor know and understand what is being said. That is a much better start than what follows taken from a real case but anonymised : The Court proceedings in Claim No. Unless it is important and relevant to settlement discussions, there is no need to set out the procedural history of the litigation. By way of examples, it might be that the limit of indemnity in a professional indemnity policy is much lower than the amount of the claim, that a party cannot continue to pay legal costs for very much longer, that the costs of going to trial are unaffordable and cannot be financed, or that there is a reservation of rights between the insured and the insurer.

Most non-lawyers eyes will glaze over when faced with a narrative of that kind. In short, it forms an important part of risk assessment. Such points will be things that the party wants the mediator to be aware of but which that party does not want revealed to the other party.

So if you want an apology or acknowledgment of some sort, or anything that a court cannot order — ask for these.

Maryland mediation statement

Use short sentences. Sometimes it can be useful to set out the various possible outcomes of the litigation and what each outcome means in monetary terms a preliminary risk assessment. The principal objectives ought to be identification of the key areas of dispute and a brief statement of what the party says about those issues and why. In practice, most position papers are not factual summaries. The latter points of disagreement can usefully be developed into the points that have created difficulty in settling the case before the mediation and suggestions made as to how those settlement blocking issues might be progressed. Refer to page numbers in the mediation Bundle as appropriate. Unless it is important and relevant to settlement discussions, there is no need to set out the procedural history of the litigation. This approach can work well because it has the potential to set the agenda for discussions at the mediation, which can be an advantage to the party that does it. It is perhaps surprising how much a genuine apology, albeit made without prejudice, can help oil the wheels of the settlement train even where liability is being disputed. My post a year or two ago on Killer Position Papers was very much encouraging lawyers to adopt a mediation orientation when writing position papers rather than simply produce something akin to an opening submission at trial. The joint session provides an opportunity for the parties to explain how they see the dispute. Their job is fundamentally different.

Try for an arresting first sentence. Even if some points will be unwelcome reading for the other party, they can still be delivered without rancour, abuse or rudeness: bad news can be given in an appropriate way.

mediation statement pdf

Such points will be things that the party wants the mediator to be aware of but which that party does not want revealed to the other party. The third was the utterly devastating argument that I thought of after going to bed that night.

Mediation opening statement examples

The third was the utterly devastating argument that I thought of after going to bed that night. The sum claimed is , plus interest and legal costs. Offers need to be made if the mediation is to proceed and succeed and there is an advantage to getting the process underway sooner rather than later. Include a chronology if appropriate. It should analyse the dispute and communicate your objectives to the mediator. It may also include concessions your client might be willing to make, and state whether they are dependent upon concessions from the other party. Without doubt, in drafting the position paper it is good to set the right tone for a negotiation. Generally not. In any event, there are often two sides to those kinds of points. For more detailed help in preparing position papers with check lists and templates see Chapter 15 sections So thanking the other party for agreeing to mediate may help in some cases.

It is vital to use that opportunity to best effect. Better then that assertive conclusions are accepted in the position paper for what they really are, just statements about how a party through their legal representatives says they see things and that such conclusions are worded so as not to strain unconvincingly towards some more persuasive outcome.

Whilst commentary of a kind can be useful because an important step to resolving differences can be the identification of what is disagreed with and whythis can more effectively be dealt with on the mediation day to the extent the parties and the mediator think appropriate.

Effective mediation statements

How likely is this? Make sure the mediator has copies of both statements and the Bundle as far in advance of the mediation day as possible. It also causes the mediator to work out for himself, in limited time, what the pleadings say the dispute is about, what is agreed and what is disputed and how much money is in dispute. Assessment of why the parties have not been able to settle. Details of legal costs to date and going forward to trial. The latter points of disagreement can usefully be developed into the points that have created difficulty in settling the case before the mediation and suggestions made as to how those settlement blocking issues might be progressed. The key issues — of fact or law. And a table of contents helps. It may also include concessions your client might be willing to make, and state whether they are dependent upon concessions from the other party. Use names or initials if possible, rather than e. Try for an arresting first sentence. It should analyse the dispute and communicate your objectives to the mediator. If the point involves referring to decided cases, it can be useful to put the legal detail, case names and citations in footnotes.
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