Sometimes the parties to a mediation are asked to provide the mediator in advance with a position paper. This is a document of a few pages (as a rough rule of thumb, the equivalent of five minutes’ talking). It sets out in broad terms how the parties have got to where they are, how they feel about that and where they want to get to. Often the phrase used here is what they “want tomorrow to look like”.
A position paper is not generally a compulsory part of a mediation (it is very rarely requested in judicial employment mediations) but it can be helpful to both the mediator and the parties themselves. Sometimes these are for my eyes only and sometimes they are written expressly with a view to being exchanged between the parties. It does not matter much which, as obviously there is never any exchange unless I have the agreement of all concerned.
From my perspective as mediator, a position paper can help me make prior sense of a dispute where either there is very little documentation (for example a falling out between colleagues) or where the paperwork is voluminous or badly-organised. It can certainly be helpful during my preparatory work to have my attention drawn to particular key documents. After all, the less time taken to set out these basics at the mediation itself, the greater the time the parties can apply to the process. A position paper can also help me assess in advance the intended approach of each party to the mediation. While the tone and demeanour which each adopts is ultimately a matter entirely for them, ignorance or anxiety can sometimes lead position papers to come across as particularly unrealistic, insulting or uncompromising. In those circumstances I would tend to have an “Are you sure?” conversation with the party, just on the basis that its continuing that approach in the mediation itself might increase the risk that the other would walk away.
The preparation of a position paper can also help the parties themselves. The mere process of reducing their thoughts and aspirations to paper can help bring order and a strengthened degree of realism to their thinking. In addition, when it comes to their opening statements, the position paper can often act as a script (or the basis of one) for what can be a daunting moment (see next week).
So the position paper is mostly good news. But all that said, I would never insist on one if I thought that the mere process of writing it would be off-putting to a party. They might have limited writing skills or fear (quite unjustifiably) that their paper will somehow be “trumped” in my eyes by a more polished product from a professional representative. They may just feel happier to talking to me than writing, and that could make any requirement for such a paper an obstacle in their mind to the mediation itself. Under those circumstances, while not preventing the other party doing such a paper for its own use, I would not ask either to produce one.
Next week, there you are in the mediation room with the other side, the process just kicked off. The mediator turns to you and asks you if you have anything to say. What should be in your opening statement?
