If you’ve suggested brainstorming lately, it is likely you’ve heard the echoes of groans and complaints. Over time, the benefits of brainstorming have been lost to the age of quick answers via Google, but it remains a valuable tool for preparation in negotiations and mediation. While we can theoretically brainstorm alone, it is the sharing of thoughts that generates ideas, inspires solutions and offers clarity. Two heads are better than one, right? For lawyers, brainstorming is a helpful tool that a good mediator should employ.
Whether preparing for mediation, brainstorming is critical in determining the interests of the parties.
Once interests or potential interests are identified, the focus of brainstorming can shift to possibilities that address or satisfy those interests. Rather than focusing on the common challenges of satisfying the needs of opposing parties, the working goal of brainstorming should be seeking potential “win-wins.” Negotiating a resolution will offer much broader options than those limited by a court. The more creative the solutions, the more likely the chance for reaching a mutually beneficial conclusion.
Sounds reasonable, right? However, there’s a big “but,” and that is knowing brainstorming can’t stop at the preparation phase.
Once engaged in the negotiations, you may generate ideas or solutions that couldn’t have been anticipated during planning. Maybe the value of some previous ideas will become more valuable. Brainstorming will also serve as an opportunity to identify a “black swan” – that thing previously unknown but which could serve as the basis for a resolution.[i] You remember us talking about those, right? The bass boat?
Does the mediator have a role in the brainstorming process? In short, yes.
A party can benefit from brainstorming with the mediator in individual caucuses, whether brainstorming interests and resolutions or the likely outcome if the case is not settled. The mediator can be an ally during the brainstorming process. The mediator may be able to more effectively communicate something to a client. Perhaps he hasn’t quite grasped what his lawyer shared, such as how things might play out at trial. The mediator can readily explain these realities, reinforcing what the client has already heard or perhaps is hearing for the first time.
Brainstorming is just one of many tools available to identify, explore, and evaluate potential resolutions. Once the initial resistance falls away and the parties are engaged, the process offers surprising and successful results. Still not convinced? Let’s brainstorm about it…
[i] “Black swan” was a common expression in 16th century England as a statement of impossibility because the only swans ever known were those with white feathers. However, in 1697, Dutch explorers discovered black swans in Western Australia. The term has subsequently been used to connote the idea that a perceived impossibility might later be found to exist.