How to Brainstorm Solutions in Mediation
Old-school brainstorming is a great way to come up with a list of possible solutions. Your job is to engage the parties in performing a preliminary analysis of each proposed solution to see how realistic and acceptable it’s likely to be. Take the following steps to facilitate a problem-solving brainstorming session:
Encourage the parties to suggest any solutions that pop into their heads.
Don’t allow any analysis or criticism of these suggested solutions at this point because doing so can stifle creativity. Save the analysis for later. Write everything down on a white board or a large piece of paper (giant Post-it notepads that rest on inexpensive easels are very useful for this task).
As the parties suggest solutions, jot them down.
If the parties are completely at a loss, feel free to suggest potential solutions. Some people need the brainstorming well primed to get their own creative juices flowing. Allow your own suggestions to be shot down with grace and good humor, modeling best brainstorming practices for the participants.
Ask diagnostic questions to determine the viability of each proposed solution.
Questions should elicit the following information:
The proposal’s pros and cons
How the parties envision the proposal playing out
Whether the other side is likely to be satisfied and, if not, why
Whether any stakeholders whose permission is needed to approve any given proposal are absent
Whether hidden constraints are tying the hands of any of the disputants
Whether any concealed interests must be dealt with to implement any of the suggested solutions
Cross unworkable or unacceptable solutions off the list.
If you engage the parties in a search for value, you often help them discover creative solutions to their problems. Value is anything a party cares strongly enough about in the mediation process or outcome to change his mind about the parties’ ability to solve their dispute:
Value in the process: If the parties believe that the outcome was reached through a fair and equitable system, that’s value. Likewise, the parties may find value in feeling good about the role they played in the process — that they acted with integrity, for example, or that they were open-minded and perhaps even generous.
Some parties answer to higher authorities such as Biblical injunctions not to sue your neighbor or to seek peace wherever possible. Don’t forget to explore these higher values with the parties. They often contain the key to resolution.
Value in the outcome: The value of the outcome may take the form of a new business opportunity, a restored relationship, the appearance of propriety, time and money saved by avoiding litigation, an agreeable settlement sum on workable terms, an opportunity to save face, and so on.