Killer Position Papers

paperstackOn a review of the last 20 or so mediation position papers I have received, a large percentage of them start with the words “This case involves…” or “This claim arises out of…” and end with an expression of confidence in the position and a commitment to attend mediation in good faith.

Useful, but really no more than recycled pleadings rehearsing the key facts with an overlay of the legal arguments.

Californian mediator, Mike Young, has some fresh ideas about what makes a good position paper. Take a read of his article.

Position papers should allow us mediators to do our thing – we need to understand “the problem” and second we need to appreciate “the solution”.

And the problem is not the legal case – for mediation purposes the problem is whatever it is that is keeping the parties from finding a resolution to the legal case, so when you say that “the problem is opposing counsel’s view of the law and their client’s inflated expectations” you will need to be a little more introspective than that.

[A position paper] should allow the mediator to peek behind the curtain to see what is really going on. It should tell her what the relationship is like between opposing counsel. What about the relationship between attorney and client on each side? Perhaps more telling, what is the relationship of the two parties? What did it used to be? Why is the plaintiff suing? Why is the defendant fighting as hard as he is? What is the plaintiff doing now, and how are her finances? What are the defendant’s finances? Is insurance involved? What is the carrier’s position?… You will need to be insightful. You will need to be objective.

Mike suggests a good position paper for most legal disputes covers;
1. a short description of the case and the key legal and factual issues
2. the status of any proceedings, in particular when the hearing is expected
3. a summary of settlement discussions to date, if any
4. roadblocks to settlement – this may be the most useful to the mediator
5. solutions – this may be the hardest for counsel

You may prefer items 4 and 5 to be confidential to the mediator – but it is not necessarily so. Be brave, see what reaction you get.

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