The phoenix checklist
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. As litigation lawyers we have used that checklist as a guide and here is our expanded and adapted list of questions to consider when heading off to your next mediation.
Why Mediate
- 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.
The Knows about the Mediation
- What aspects about the mediation are unknown? Facts, documents, motives, things that could surprise, legal matters etc.
Things Not Yet Understood about the Mediation
- What is it you don’t yet understand? Facts, documents, motives, legal advice, process etc.
Information Available
- 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's not the Problem?
- What isn’t the problem? Anything unrelated, old and historical issues and problems, matters that are not important etc.
Sufficiency of Information
- Is the information sufficient / insufficient / redundant / in need of updating / contradictory / in need of a second opinion?
Need for Diagrams
- 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?
Boundaries of Problem
- 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. breaches of contract / tort / equity
The Constants
- What are the constants (things that can’t be changed) of the problem? Facts, law, evidence etc.
Experience
- Have you been involved in this type of commercial 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.
Restatement
- 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?
Possible Outcomes
- 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?
Other, litigation and equity disputes insights:
* Disclaimer:- This publication contains general information which may not suit your particular needs or circumstances. It may be summarised and include generalisations. Details that may be important in your specific circumstances might not be included. Litigant strives to ensure that the information in this publication is accurate and up-to-date, but does not represent or guarantee that it is accurate, reliable, current, complete or suitable. You should independently evaluate and verify the accuracy, reliability, currency, completeness and suitability of the information, before you rely on it. The information in this publication is not legal or other professional advice. You should obtain independent legal or professional advice that is tailored to your particular circumstances if you have concerns. To the maximum extent permitted by law, Litigant excludes liability for any loss, however caused (including by negligence), relating to or arising directly or indirectly from using or relying on any content in this publication. Litigant asserts copyright over the content of this publication.