Insights from the Property Mediators’ survey on position statements in mediations
Mediation became part of mainstream litigation in 1999 when the concept of alternative dispute resolution was introduced into the Civil Procedure Rules. Practitioners are taught that there are certain things that are part of this process, among which are position statements, but there is no legal or other regulatory requirement for these or what they should contain. Having seen hundreds of position statements, we thought it would be helpful to analyse why parties do them, what they hope to achieve, what they achieve and whether they can be improved.
Why do position statements?
One of the main reasons given (54%) was “to get my point of view across to the other side”. Comments reflect that if there have been no formal statements of case, or the mediation is early in the dispute, this can be very helpful.
The most popular answer (61%) was “to give the mediator information that is not apparent from the papers”. However, my experience shows that there is often not anything in the statements that I cannot see in the papers. Alarmingly, 14% do statements “because that is just what you do – it is part of the process”.
Are they any use?
Bearing in mind that a large number of statements are done to influence the other side, only 12% of respondents said they usually find the other side’s statement helpful. 35% rarely did, while 48% said they only sometimes did.
When asked what was helpful, the most common answers were: concessions made by the other side for the purposes of negotiation; identifying additional matters outside the legal dispute that might affect it or provide opportunities for negotiation; explaining a client’s stance; and any identification of options for settlement. Costs information was also useful.
Only 17% of respondents usually put forward possible solutions. 41% did so “sometimes” and 25% “rarely”. So it would seem most respondents do not do what the other side would find most helpful. There seemed to be a reluctance to do this for “tactical” reasons and a general sense of not wanting to “reveal your hand too early” or show “weakness”.
Are they counterproductive?
While 37% thought statements rarely had a negative impact on negotiations, 48% felt that they sometimes did. There was a general dislike of statements “that read like skeleton arguments” and those that were “aggressive” and “hostile”. Many thought statements could cause the parties to become “entrenched” making it harder to back down from a position. Others reported clients being “pushed further apart”, “doubting the point of investing in the mediation” and in one case “not proceeding”.
When asked if the process would be more or less effective without statements, 11% thought more effective, 56% less effective, and 33% thought there would be no difference. However, the comments reiterated the shortfalls mentioned above and the fact that more people would prefer positive suggestions for resolution. Several said that it might be helpful to send confidential statements to the mediator but when asked if they did this only 13% “usually” did, 37% did “sometimes” with 27% “rarely” and 23% “never”. Many comments showed a preference to discuss confidential information either in a phone call before the mediation or on the day.
Cost
Often one of the main barriers to settlement is the costs parties have incurred, including preparing for the mediation and producing positions statements. On average, 26.5% of statements cost £100-£500 (all figures exclude VAT), with 42.5% between £500- £1,000 and 29% more than £1,000. Bearing in mind the research highlighted, it is questionable whether clients would consider this a good use of their money.
An alternative?
If there have been statements of case and/or detailed correspondence (which is usually the case) then the restating of a “position” is not necessary and often unhelpful. Maybe it is time the name was changed from “position statements” to something more conciliatory such as “mediation statements” or “settlement statements”.
Inclusion of the following may be helpful:
- Expression of a willingness to negotiate
- Up-to-date figures – eg debts, damages, valuations, interest, costs to date and projected to trial
- Acknowledgment of the other side’s position, interests, emotions and what they might need
- What the client needs/wants rather than what they are “entitled to” and an explanation of their interests and emotions
- Expression of any points the client may be willing to concede
- Suggested compromises. This does not necessarily involve revealing the client’s figures/bottom line but may set out the alternatives for settlement including matters that a court could not order
- Exploring other matters that may be relevant/negotiable that are not the subject of the proceedings
- Confirmation of authority to settle or what limits there are and how they might be overcome eg phone calls, board approvals etc – it is best to have this dealt with up front
- Clarification of any time restraints.
It might not always be appropriate to share all of these with the other side but don’t forget the opportunity to impart information confidentially to the mediator. At the Property Mediators we offer a questionnaire for clients to answer which should draw out these points. Completed questionnaires can be sent to the mediator confidentially and may form a basis for what is revealed to the other side. At the very least they should get the client to start thinking about these options.
The important thing to remember is that mediation is not about the process for process’ sake. Unlike court proceedings there are no set rules. Far too often parties get hung up on what they think should be done process wise rather than focusing on the settlement.
• Full results of the survey are available at http://thepropertymediators.co.uk/blog
• Download client questionnaires from http://thepropertymediators.co.uk/downloads
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Jacqui Joyce is a mediator at the Property Mediators
