Some of our readers may be familiar with the “Phoenix Checklist” that was developed by the CIA to encourage problem solving but few would have attempted applying its line of thinking to mediation. Using that checklist as a guide here is our expanded and adapted list of questions to consider when heading off to your next mediation.
- Why is it necessary to solve the legal problem being mediated? Costs, anxiety levels, end the court case, get on with life, rebuild relationships, preserve wealth etc.
- What aspects about the mediation are unknown? Facts, documents, motives, things that could surprise, legal matters etc.
- What is it you don’t yet understand? Facts, documents, motives, legal advice, process etc.
- What is the information you have? Key dates, facts, important documents, expert views, matters of opinion (not fact), your position paper, their position paper, substantive issues on court documents, issues not in court documents (motives), issues agreed / contested, legal advice, offers made / rejected, lawyers helping you, lawyers opposing you, name of mediator, venue and dates for mediation, your and other party’s strengths / weaknesses / alternatives, likely consequences of views held and positions adopted, differences between mediation and court proceedings etc.
- What isn’t the problem? Anything unrelated, old and historical issues and problems, matters that are not important etc.
- Is the information sufficient / insufficient / redundant / in need of updating / contradictory / in need of a second opinion?
- Should you draw a diagram of the persons involved in your dispute and/or set out the problem with a spider diagram? Or do you need to write down the written amounts in dispute to focus your attention that way and on quantum?
- Where are the boundaries of the legal problem?
- Can you separate the various parts of the legal problem? Can you write them down? What are the relationships of the parts of the problem? Areas of the law are involved e.g. contract / tort / equity
- What are the constants (things that can’t be changed) of the problem? Facts, law, evidence etc.
- Have you been involved in this type of dispute / legal problem before?
- Have you seen this problem in slightly different form?
- Do you know a related problem?
- Try to think of a familiar problem having the same or a similar unknown.
- Suppose you find a problem related to yours that has already been solved. Can you use it or the method that was applied? Ways matter like this often settle and likely terms for settlement etc.
- Can you restate your problem in your own words and ask your lawyer if that is an accurate summary? How many different ways can you restate it? More general? More specific? Can the rules be changed?
- What are the best, worst, and most probable outcomes you can imagine? What are the views held by your lawyer and barrister? What instructions to settle can be given? How would a negotiation mindset help (if at all), what offers can I make (and why), how and on what terms could this matter settle?
* This content does not purport to give legal advice. Readers must obtain their own legal advice, that applies to the particular circumstances of their case, before taking any action at all.
We are sydney litigation lawyers. We help with: making or responding to a letter of demand (or a without prejudice offer), documenting a Deed of Settlement, getting or opposing an injunction or taking a matter to trial. We handle different cases such as breach of contract, remove a caveat, property disputes and others. Call us on T: +61 2 9199 4530 to discuss your options.