The Importance of Brainstorming in Mediations

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 to use with clients and should be a resource that a good mediator will also employ, especially in cases dealing with complex issues.

Whether preparing for negotiations through mediation or alone, brainstorming is critical in determining the interests of your client and the opposing 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 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 very important to the other side.[i] Discoveries of this nature can provide options for a successful resolution.

Does the mediator have a role in the brainstorming process? In short, yes.

You can benefit from brainstorming with the mediator in your individual caucuses, whether brainstorming interests and resolutions or the likely outcome if the case is not settled. Use the mediator as your ally during the brainstorming process. The mediator may be able to more effectively communicate something to your client. Perhaps he or she hasn’t quite grasped what you’ve shared, such as how things might play out at trial, and the mediator can more readily explain these realities.

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.