So, while the papers produced for mediation are not usually the first opportunity each party has to see how the dispute is approached by others, those papers, and in particular the position papers, are hugely important and becoming more so – especially given the trend for commercial parties to have less contact time as they spend little time together in joint and more time apart in caucus on mediation day. Paper can therefore sometimes be the primary way in which parties communicate the entirety of their legal, factual, and commercial argument.

Justice Susan Glazebrook of the Supreme Court of New Zealand (New Zealand’s highest court) has produced a no-nonsense guide to Effective Written Submissions in keeping with her style of judging.

While aimed at appellate lawyers involved in the litigation process, much can be taken from the Judge’ s paper by those preparing litigated cases for mediation, especially position papers to be provided to the mediator and other parties.

The obvious rider is that the Judge’ s paper is all about how best to persuade the decision-maker before any oral argument takes place and we all know the mediator is not a decision-maker and does not need to be persuaded of anything – in that sense quite agnostic – but nevertheless my experience is that documents received prior to mediation day are very influential in determining how I approach each mediation, especially how I order my thoughts and work out the architecture of the approaching discussion.

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. These usually start with “This case involves… ” and end with an overly confident expression of success qualified with a commitment to discuss the dispute in good faith.

Read original article


Tags: