Position Papers – Yes or No?

Is it just me or does this question arise in the lead up to just about every mediation.

On the one side, there are those who see Position Papers as a waste of time, especially when the dispute is the subject of pleadings. On the other, there are those who see the exchange of Position Papers as essential, especially when the dispute is not the subject of pleadings.

In my experience, neither stance is right or wrong. Good Position Papers save time and help facilitate the resolution of the dispute. Bad Position Papers do little to help the process and may have the opposite effect. As such I think it is better to pose the question – What makes a good Position Paper and what makes a bad one?

Positions v Interests

A good Position Paper probably should be called something else because it flushes out the interests of the party not just the positions they take on the issues in dispute.

The position of a party is the stance it takes on an issue in dispute.

The interests of a party are its desires or goals. The things it wants to achieve in a dispute.

The difference between a party’s position and its interests is best illustrated by a simple example.

Let’s say we have a dispute between two parties to a contract, a buyer and a seller. The seller’s position is that the conduct of the buyer entitles it to terminate the contract and not supply the product. The buyer’s position is that its conduct does not entitle the contract to be terminated and the seller is obligated to supply the product.

Assessed purely on these positions, it hard to see how this dispute could be resolved other than by judicial determination. However, once we flush out the interests of the parties, we can see more clearly how the dispute could be resolved.

The interests are revealed by asking:

  • The seller, why do you want to terminate the contract?
  • The buyer, why do you not want the contract to be terminated?

In answer to those questions:

  • The seller says, the price of the product has gone up and my interests are best served by terminating the contract and selling the product elsewhere.
  • The buyer says, the price of the product has gone up and my interests are best served by holding the seller to this contract.

Straight away we see that both parties have similar interests, they want to maximise their profit. A dispute framed in that way is much more likely to resolve than one focused on competing views on the rights arising out of the contract. That is why a good Position Paper articulates the interests (desires and goals) of the party.

Good Position Papers

In summary, a good Position Paper is brief and addresses matters such as:

    1. Who are the parties?
    2. Who are the attendees and what are their roles?
    3. What is the nature and size of the dispute?
    4. What are parties arguing about and why?
    5. What do the parties agree upon?
    6. What do the parties not agree upon?
    7. What issues need to be addressed at the Mediation?
    8. What a party does not understand about the other party’s position
    9. Are there any outstanding information requests?
    10. What offers have been made and why have they been rejected?
    11. Why have the parties not been able to settle?
    12. What are the suggested ways forward to settlement?
    13. What are the legal costs to date and going forward to trial?
    14. How are the parties’ interests best served by settling the dispute?
    15. What are the options if the matter does not settle?

By contrast, bad Position Papers:

  1. Do nothing more than try to prove a point and “win the mediation”.
  2. Are forceful and aggressive.
  3. Criticise the other side or their lawyers.
  4. Make settlement seem unlikely.

Conclusion

In my experience, a Position Paper that does nothing more than regurgitate the pleadings or submissions will offer little assistance to the mediation process and may be detrimental. Whereas a good Position Paper that flushes out the interests of the party will make the mediation process more efficient and more likely to resolve the dispute.

Therefore, my answer to the question, Position Papers -Yes or No, is yes please, to a good Position Paper and no thank you, to a bad one.