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By Steven G. Mehta

One of the key things that a mediator can provide for clients is the ability to think creatively.  Indeed, some would say that a mediator’s ability to be creative is one of the key traits to being an effective mediator.  Creativity, however, doesn’t necessarily mean painting the Mona Lisa.  Instead, for mediators, creativity means thinking out of the box to work towards a resolution.  It does not mean, finding a resolution, but merely working towards it.  I recently found a post by blogger, Brian Clark, who writes on copywriting on the web.  His article is entitled, Do You Recognize These 10 Mental Blocks to Creative Thinking? I think this list is quite helpful to keep in mind, as a mediator.   He has listed the mental blocks, which I will provide you, and then I will discuss my thoughts regarding mediation.

1. Trying to Find the “Right” Answer

In my view, there is no right answer to the problem in mediation.  There is movement or no movement.  As long as you have movement, you have the answer.  No particular answer is the right answer.  As Brian indicates, “There’s often more than one “correct” answer, and the second one you come up with might be better than the first.”  If you focus too much on the perfect solution, you will not realize an adequate – and acceptable – solution.  Look at the issue and the problem from different ways.  Don’t limit your answer by asking the wrong question.

2. Logical Thinking

Mediation is often times not logical.  People’s positions are not necessarily logical.  Wanting a piece of flesh from somebody has no bearing in logic, but it is real.  We have to recognize that if we focus on the logic of the situation, we may ignore the illogical – but satisfactory – answer. For example, in an employment mediation, I asked the defense if they would provide a neutral reference.  They informed me that the request was illogical because they would not want to create liability by providing a negative or positive reference.  To the plaintiff, however, who had a bad experience with the employer, her feeling that the employer would negatively attack her for the rest of her days was irrational, illogical, but very real.  One way to avoid the logic of the issue is to think of the most insane solutions, and work backwards.  When forced to look at the absurd, the rest may become logical.

3. Following Rules

As Brian Clark indicates, “One way to view creative thinking is to look at it as a destructive force. You’re tearing away the often arbitrary rules that others have set for you, and asking either “why” or “why not” whenever confronted with the way “everyone” does things.”  The “why” question is a powerful tool for getting out of the ordinary, and trying to understand what is behind the position.  Beware, sometimes when you ask this question, you may get stung because you are peeking in  behind a thorny problem.  Sometimes, when you ask the other side why, it may take several efforts at trying to unveil the reasons behind a problem.

4. Being Practical

I hate practicality while brainstorming.  The worst thing to do to a creative session is to inject practicality.  This is not to say that practicality doesn’t have its place.  It does.
But just not in the creative process.  Take down the ideas, then the parties can shoot the them down later if they like.  This is not a feasibility study.  One problem, however, is that attorneys may not want to spend time thinking of something that has no feasibility.  The reality, however, is that if they think of how to make and impracticable solution feasible, they may come up with a different solution that is feasible.  For example, in a property theft case, where both sides had accused the other of property theft, I suggested that each side pay $1,000 to the other side if they found any item on the other’s property, no matter the size or value.  They rejected the idea, but in doing so, they arrived at a solution that was workable.

5. Play is Not Work

Sometimes you have to have fun in mediation.  It can’t all be work.  You need to sometimes change the dynamic of the room.  Maybe change the environment or the mood.  By changing one of the dynamics of the room, people, or activity, you can spur creative solutions.

6. That’s Not My Job

You are the mediator.   It is your job.  This doesn’t mean it is exclusively your job.  But the role of Creative Soup Stirrer is yours.  You don’t have the ingredients.  But once you get the ingredients, you need to stir them to make sure the soup doesn’t burn.

7. Being a “Serious and Polite” Person

You can be a serious person, talking about a serious topic, but that doesn’t mean you have to conform.  Often, “seriousness” is mistaken for groupthink.  People maintain a civilized manner and conform to the group.  This leads to civility amongst society, but helps very little to coming up with creative solutions.  Sometimes, you have to non-conform in order to change things up.  Sometimes as a mediator, you don’t have the luxury of not ruffling a few feathers.  Unless people see the other side, they may not be willing to come up with ideas to resolve the case.

Sometimes, you have to make harsh statements in jest.  Sometimes, the harsh truth of a statement can be softened by making light of it.  Indeed, Kings of old age have frequently consulted with a jester because “the persona of the fool allowed the truth to be told, without the usual ramifications that might come with speaking blasphemy or challenging ingrained social conventions.”

8. Avoiding Ambiguity

Most attorneys thrive on certainty.  Mediators, however, should thrive in the world of ambiguity.  Often, our statements are intentionally ambiguous to provide time and space for a topic to be discussed.  Accepting ambiguity as a good thing can be liberating.  Realizing that there are not only black and white, but shades of grey can help you to demonstrate to the parties that different perspective exist.

The reality is that because attorneys want certainty, they don’t want the ambiguity to be explored.  As long as you can embrace ambiguity in the situation, rather than run from it, you may be able to see the solution.

9. Being Wrong is Bad

Everything we are taught is that it is wrong to be wrong.  Well, that’s where you’re wrong.  Mistakes are the basis of discovery.  Thomas Edison famously stated that he didn’t make 10,000 mistakes; he found 10,000 ways not to make a light bulb.  One of Edison’s greatest strengths was that he was not afraid to be wrong and he was creative.  He came up with thousands of items that might create a filament for a light bulb.  He didn’t go with conventional wisdom.

As a mediator, you can’t be afraid to make mistakes.  Often your best solutions come from mistakes that you have made.  The reality is that most people don’t know that you made a mistake; only you do.  Try the idea.  If it doesn’t work, all that has happened is that you – at worst – haven’t moved forward as much as you had hoped.  In reality, even your mistake will likely move the parties closer to resolution.  .

10. The Law is Not Creative

Who ever said the law was not a creative field must never have heard some of the best lawyers make their closing arguments, or present extensions of the law.  The law is full of creativity – from creating new precedent, to applying new facts to old precedent.  The law is about creating solutions.  Lee Iacocca once said, “We are continually faced by great opportunities brilliantly disguised as insoluble problems.” Denying your own creativity is like denying yourself wonderful opportunities.   Those opportunities and solutions are there, you just have to find them.

By Steven G. Mehta

What a crazy couple of weeks.  I have been coming home at midnight one day, working late other nights, and then meeting my obligations to the boards that I am on.  With that said, I saw an interesting article on creativity.  Here is a brief excerpt from the article:

Be comfortable “working in ambiguity.”
The key to true creative problem solving is the ability to work in ambiguity – to explore the full range of possibilities without jumping to conclusions. The poet John Keats praised Shakespeare for this trait, which he called “negative capability.” As Keats defines it, negative capability “is when man is capable of being in uncertainties, mysteries, [and] doubts without any irritable reaching after fact and reason.” In short, we must feel comfortable moving forward without always knowing exactly where we are headed.
(For the full article, click here)

This point got me thinking about creativity in mediation and negotiations.  The fact of the matter is that mediators don’t always know where they are headed.  They have a general idea of a direction, but the specific route is not usually defined.  Mediators need to be comfortable in the ambiguity — not knowing what a move will do, not knowing when the case will resolve, if at all, not knowing what the parties will do, or a variety of other unknowns.  Mediation often seems to be an experiment in looking through all the ambiguity.  Not only of the ambiguity of the process, but the ambiguity of the statements that parties make.

Another reason for not knowing where you are headed is the bias that once you think you know where you are heading, you make corrections in your path that you might not have otherwise have made.  In other words, as a mediator, if you know a number a party is willing to pay, don’t you think you might be influenced by knowing that number?  Instead, let the parties know their destinations, and you can experience their destination by going through the journey.

By Steven G. Mehta

One of the advantages of having a mediator is the fact that the mediator is neutral and not so closely connected to the case.  A recent study has confirmed this concept by showing that people who solve problems for others are more creative than those who are thinking of solutions for themselves.

According to Evan Polman and Kyle Emich, we’re more capable of mental novelty when thinking on behalf of strangers than for ourselves.   Studies have previously shown that the more our distance to a matter is, the more abstractly we can imagine a solution to the problem.

According to several studies done by Polman and Emich, participants were more creative in solutions across the board when they were less connected to the issue.  For example, participants drew more original aliens for a story to be written by someone else than for a story they were to write themselves.  Participants also thought of more original gift ideas for an unknown student completely unrelated to themselves, as opposed to one who they were shared the same birth month.  Finally, people were better able to create an escape route from a trapped tower if were thinking of someone else trapped in the tower, rather than themselves.

The study dealt with unknown people.  But it could be affected if we knew who the person was we were helping.  According to the researchers, it will make a difference who we think we’re solving a problem for.

As a mediator, this concept makes sense.  One of the reasons that parties come to mediators is because of the intellectual distance.  The mediator can neutrally evaluate the case and facts from a distance.  In doing so, sometimes the mediator is able to see a solution the parties might not have otherwise have seen in the first place.   As a mediator, it is also important to make sure to not get too closely aligned with one side or the other so as to maintain the ability to see the forest through the trees.

 

By Steven G. MehtaSteve Mehta

Recently, at the ABA convention for alternative dispute resolution, there was a discussion of the secrets to a mediator’s success.  This reminded me that I had previously written an article on this issue in the Southern California Mediation Association Magazine citing to some of the research presented at the ABA.  After having reviewed the article, the suggestions in that article remain valid today.  As such, I am including that article for discussion.  In another article, I will address some of  the other research on this issue that arose out of the ABA conference.

Many people have suggested that once a mediator learns negotiation techniques that can help a party to make movements, such as the mediator’s proposal, that is all that is necessary to be a successful mediator.  Many attorneys have also told me that they don’t feel the mediators should spend time “kibitzing” or “schmoozing” with the parties and that the mediation should just commence.  Unfortunately, I believe that these people have missed a crucial understanding of the mediation process and what needs to be accomplished before a mediator can begin to effectively guide the parties to a resolution.  In my opinion, there are three things that all mediators must be able to do, regardless of the type of mediation, in order to be successful at mediation.  Those three things are the ability to develop trust and rapport with the parties, the ability to arrive at creative solutions and persistence.

 I have always believed that the secret to a successful mediation is not the number of negotiation tools that the mediator uses, but instead something much more personal in nature. The secret to being a successful mediator lies inside the person.  In fact, I have always acted on the assumption that my success as a mediator has not been from my knowledge of specific negotiating techniques; but instead, it has been based upon my ability to connect with the parties and the attorneys and to build a meaningful relationship in a short period of time.  This belief was affirmed in an article in the Harvard Law School Negotiations Journal entitled, “The Secrets of Successful Mediators” by Professor Steven Goldberg. 

 Based on a study of thirty (30) experienced and successful mediators, Professor Goldberg concluded that the secret to being a successful mediator was their ability to develop a rapport and trust with the participants.  The study asked the mediators to anonymously provide the reasons that they believed they were successful in mediation.  Uniformly, the mediators responded that the secret to their success in mediation was the ability to develop and maintain rapport and trust.  One participant anonymously wrote: 

 “I think the greatest and most useful skill I have is the ability to gain people’s trust.  They come to believe that I will not lie or mislead them and that I am interested in reaching a settlement that works for them.”

 Once we understand that trust and rapport is critical, we have to understand why it is such a critical function.  According to the study by Professor Goldberg, the establishment of a rapport “encourages the parties to communicate more fully with the mediator, often providing her with the information she needs to help the parties craft a settlement.”  Professor Goldberg cited to additional research in this area stating that “credibility-enhancing activities….serve a double useful purpose:  not only do such activities give the mediators the credibility to offer suggestions designed to resolve the dispute, they may also create a climate where the parties trust the mediator, allowing the mediator to attempt relationship building between the parties…”  However, these are not only reasons why rapport and trust are so crucial to effective mediators.  Without gaining rapport and developing a relationship with the parties, the mediator will not be allowed into the inner world of the client.  Instead, the mediator will be seen as a well-intentioned outsider who is trying to help.  Often times, the parties will not allow the true reasons, solutions or problems to arise in the mediation until they feel comfortable that the mediator is “one of them.”  This is not to say that the mediator has to become a party to the action.  Instead, it does mean that the participants must feel as if the mediator has become one of them and that the mediator has their best interests at heart.  Without this type of trust, regardless of the negotiators acumen, the mediator will be destined to fail in the times when the parties need him or her most:  the difficult cases.

 In my own experience, I have found that working with the parties to gain their trust has paid numerous dividends.  In one mediation, I had worked extensively to develop the trust and confidence of the parties.  The defendant had been leery about the mediation and didn’t want to be there.  However, after several hours of showing that I cared about what would happen her if the case didn’t settle, she opened up to me and “spilled” her concerns about settlement.  Based upon those concerns we were able to fashion a reasonable settlement.  However, even at the end, she asked her attorney to go outside and then asked me whether it was a “fair” deal.  Without having built the trust with the client, that settlement may not have occurred

 But how do you create rapport and trust?  You can’t just walk up and tell a person to believe in you.  The fact is, as our parents have told us when we were kids, “actions speak louder than words.”  If our words say please trust me, and our actions don’t, people will trust the actions.

 First, and foremost, a mediator needs to care about the parties and their concerns.  Although a mediator does not need to make the client’s problems his or hers, the mediator certainly needs to communicate both physically and verbally that he or she cares about the other person.  Without this, rapport will never develop. 

 Unfortunately, the ability to care about someone cannot be taught.  Fortunately, there are tools that can help make someone feel comfortable with you as a mediator.  Some of these techniques are used by mediators on a regular basis such as listening carefully to each party’s needs and concerns; acknowledging the legitimacy of some of those concerns; and demonstrating a willingness to try to help with those concerns.

 The above-mentioned skills to develop trust and rapport are well accepted and are often taught in mediation courses.  Although these approaches are necessary and important, these skills alone do not fully allow a mediator to develop the personal rapport that is necessary.  Frequently, the rapport is built not based upon your ability to be empathetic but your ability to demonstrate to the participants that you’re a human being that is similar to them.  Researchers have found that when people believe that they are among friends and among people that are similar to them, they are more likely to accede to requests or to be convinced to change a particular position.  As such, there are many ways to develop personal rapport with individuals in a mediation.  These include the following:

 Identifying common personal experiences;

  • Discussing things that are pleasant;
  • Talking about an individual’s children;
  • Demonstrating common values;
  • Affirming the other person as a human being;
  • Demonstrating sincerity;
  • Demonstrating that you care about the person’s feelings;
  • Injecting humor into the proceedings; and
  • Your willingness to share personal details about yourself.

 These concepts can be applied throughout the mediation.  However, it is very important to establish many of these areas of rapport early in the mediation and then to enforce those areas throughout the process. 

 Professor Goldberg’s research also indicated that although establishing rapport is probably the most critical factor in any successful mediation, nearly half of the mediators also stated that one of the keys to their success was their ability to “generate  previously unconsidered or insufficiently considered settlement ideas.”  In other words, their creativity was important.  Any person can convey numbers back and forth; and anyone can help resolve a dispute when the parties were already willing to settle.  But not anyone can settle the case where the parties want to settle, but just don’t know how without losing face.  In those cases, creativity is sometimes the only thing preventing the parties from leaving the mediation setting.

 One way to develop creativity is to focus on the underlying issues that are motivating the participants.  Part of creativity also requires the mediator to let go of his or her fears of rejection.  If one idea fails, the next one won’t.  As exemplified by Thomas Edison, it took 9,999 failures to come up with the one success – the light bulb.

 I often find creativity and the ability to think outside the box as being a critical tool.  On one occasion, the parties were deadlocked in a case where each side accused the other of stealing personal property.  I made a suggestion that I knew was going to be unworkable.  The suggestion required each side to inspect the other’s property and for each item found that was on a list of stolen items, the party in possession of the property would pay a $1,000 to the other, regardless of the cost.  Although the proposal was unacceptable, it kept the parties talking and eventually led to the parties agreeing to the value of each item.  That small agreement then paved the way for the ultimate settlement once the parties realized that they were going to spend more on litigation than the items were collectively worth.  Without the crazy proposed solution, there would have been no solution. 

 It is also important to note that creativity can be used not only to develop ideas for settlement, but it an also be used to identify areas where you can build rapport with the individuals.

 Finally, the third most important characteristic of a successful mediator is the ability to be patient and tenacious.  Professor Goldberg’s research reiterated the concept that successful mediators do not give up hope even when the participants have done so. Frequently, for successful mediators, the response “no deal” serves as a motivator for the mediator.  It makes the mediator want to find a solution even more.

 As noted by Professor Goldberg, some mediation skills cannot be taught.  For example, you cannot teach someone to care or to be persistent.  However, other skills can be taught.  For example, active listening skills can be taught.  As such, it is important for mediation educators to teach more of the skills related to the three essential traits.

 Although these three factors have been found to be critical skills for all mediators, it is not to say that the other skills, such as the ability to move the parties closer together, negotiating techniques, or the ability to maintain the parties’ focus are not also important.  These skills, taken with the essential traits can help a mediator develop a significant tool box that can be used in any mediation.  Negotiating skills, along with the ability to develop rapport and be patient and persistent, can make the ordinary mediator into the superhero of mediation.

Originally published in the SCMA Magazine, September, 2005 by Steven G. Mehta

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