There is a document that almost nobody writes and that changes disputes more than any other. It is short, it is internal, and it says plainly what the contract provides, what the records support and what the position is realistically worth. It is the output of an initial dispute review, and it can equally be written by your own team if they are willing to be hard on themselves.
What makes it useful is the audience. It is not written to persuade the other side, which means it does not have to overstate, and it is not written for a tribunal, which means it does not have to be exhaustive. It is written so that whoever is deciding knows what they are deciding about.
Why it changes behaviour
Most disputes run on an understanding of the position that lives in several people’s heads and is slightly different in each. The commercial manager believes one thing, the director believes a simplified version of it, and the person who will have to prove it believes something more pessimistic than either.
Writing it down forces the differences into the open. The act of putting a clause reference next to an assertion reveals immediately whether the assertion rests on anything, and the act of listing the supporting records reveals whether they exist.
It also creates a fixed point. Later, when the argument has moved several times, there is a document saying what was believed at the start and on what basis, which is useful for deciding whether anything has actually changed.
What it should contain
Four things. The facts, stated as a sequence with dates rather than as a narrative. The contractual basis, with the clauses identified. The evidence, listed rather than described. And the realistic value, separated from the aspirational one.
Each section should be capable of being read on its own by somebody who was not on the project. If it cannot, the problem is usually that the position depends on context that only insiders have, which is exactly the weakness worth finding now.
A fifth section is worth adding: what we do not have. Naming the gaps in your own case is the part that makes the document honest and the part most often left out.
What it should not contain
Adjectives about the other side’s conduct. Assertions that cannot be supported by a document. Figures that nobody has checked. Legal conclusions stated as though they were settled.
It should also avoid the structure of a claim. A claim is an argument and it is written to persuade. A position paper is an assessment and it is written to inform, and mixing the two produces a document that is useless for both purposes.
Length is a discipline rather than a virtue. If the position cannot be stated in a few pages, it is usually because several separate issues have been bundled together and each needs its own treatment.
Who should read it
Whoever controls the money. That is the whole point of writing it: a decision about spending on a dispute should be taken by somebody who has seen the position, not somebody who has been told that it is strong.
It is also worth putting in front of whoever will have to execute the decision. If the person who would prepare the claim reads the position and thinks it understates the difficulty, that is important information and it arrives before the commitment rather than after.
What it should not do is circulate widely. It is an internal assessment containing an honest account of your own weaknesses, and it is written on the assumption that it stays inside the business.
How it changes a negotiation
A party negotiating from a written position concedes deliberately. It knows which items are strong, which are marginal and which are being run because they were part of the original letter and nobody has removed them.
That produces better settlements, because it allows a trade. Giving up two weak items in exchange for agreement on a strong one is a sensible transaction. Giving up items because the other side pushed hardest on them is not.
It also prevents the particular failure where a party refuses a reasonable offer early, on the basis of a position nobody has tested, and accepts a worse one later when the weakness emerges.
When it leads somewhere formal
Where the position holds and the other side will not move, the paper is the starting point for whatever comes next, and almost all of its content is reused. Nothing is assembled twice.
The formal work itself is a separate piece: a disputed account, a payment cycle, a retention balance or a referral are different exercises with different scopes. Which one fits is usually obvious once the position is written down.
Where it does not hold, the paper has done the more valuable job. It has stopped a claim at the point where stopping costs almost nothing, and the business keeps both the money and the relationship.
The named pieces of work sit under claims and dispute advisory, and each one starts from a written position rather than producing one. That ordering matters: assembling a submission first and establishing the position afterwards is how businesses discover late that they have built a case around a weakness.
The prevention, as with most of this, is during the works rather than after them. Change valued as it happens and recorded properly rarely needs a position paper at all, which is one of the quieter arguments for cost control and variations being done well.
Not sure whether the claim is worth running?
An initial dispute review reads the contract and the correspondence, tests whether an entitlement exists and tells you what the dispute is likely to absorb before you commit to it.