Brainstorming has often gotten a bad rap. While we rarely overuse the process, perhaps the term was worn out in the 90s. Regardless, it is a powerful tool that should be used in preparing for and engaging in negotiations and mediations. Successful brainstorming is based on the premise that two heads are better than one and the fact that hearing thoughts and ideas from others generates thoughts and ideas for the participants. Brainstorming can, of course, be done alone, which is better than not doing it at all, but having two or more sharing their ideas really gets the creative juices going. As a lawyer, it is a valuable skill to use with your client. And brainstorming is a resource that a good mediator will also provide. In preparing for negotiations, whether through mediation or alone, brainstorming to determine the interests of your client and the opposing parties is essential. Once those interests or potential interests are identified, the brainstorming focus can shift to possible resolutions that address or satisfy those interests. How can the interests of your client be met while also satisfying the interests of the opposing parties? Your goal is to look for potential “win-wins.” The beauty of negotiating a resolution is that your options are much broader than if your dispute were to be resolved by a court, where remedies are limited. Creative solutions are especially important if the parties desire any chance of a continued mutually beneficial relationship. But brainstorming doesn’t end at the preparation stage. Once engaged in negotiations, working with the “opposing” parties to identify potential solutions can generate ideas that perhaps couldn’t have been anticipated in preparations. Even if solutions where identified in advance, the relative value assigned to each perhaps was not as clear. This brainstorming is also a prime time to find a “black goose” – that thing whose existence was unknown which is very important to the other side that can provide a basis for resolution. Where does the mediator fit into brainstorming?
Remember, you are paying the mediator for more than shuttle diplomacy. 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.
Brainstorming with the mediator can also be a very effective means of communicating something to your client that he or she hasn’t quite grasped from what you have been saying, such as how a third party might view their position or how things might play out at trial.
Brainstorming is just one of many tools that I use to help the parties identify, explore, and evaluate potential resolutions. When the parties actually engage in the process, it frequently bears fruit. I look forward to brainstorming with you.