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The Closer
A Mediation Newsletter 
February 2013
Thinking Out of the Box
by James Rainwater
If there is one thing I have learned from mediating all varieties of cases, it is that, in each mediation, there is something new learned. By that, I mean that regardless of the subject matter, each mediation presents something that was not previously considered by the parties. Essentially in mediation, nothing is a sure thing. The process is a constant work in progress.
With the malleability offered by mediation, the parties can take advantage of this freedom and give serious thought to proposals that may be unexpected, unconventional, or completely unforeseen. By employing creativity, the mediator can offer solution scenarios that had never occurred to either party. As part of this process, the mediator should foster an environment that encourages the brainstorming of ideas.
Attempting to resolve a dispute is not entirely unlike working on an advertising campaign. We have a goal: Resolution of the matter. We have clients: The parties in dispute. And we have a medium: The settlement agreement. By approaching the issues in a more collaborative manner, the attorneys and parties can utilize the process of wide-open thinking.
Unfortunately, law schools do not teach Creative Settlement 101. So, it is not always an easy task to pry ourselves from the confines of a structure drilled into our psyches for three years and reinforced nearly every day. The mediator's job is to assist in removing that restriction while creating open lines of communication among the parties.
Thinking out of the box can be summed up by using the three C's: Communication, Collaboration, and Creativity. If clients and their attorneys do not speak openly, then the three C's will not have a chance of working to resolve the conflict. Mediation is a confidential process, and its discussions are not admissible in court. This is the time to remove the walls of silence and obstinance and get down to the business of crafting an agreement.
