Originally from Dispute Resolution Journal

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Legal and economic reasoning are frequently employed to better understand mediation, but taking a more behavioral perspective based on creativity and psychology may shed new light on the topic and add tools to a mediator’s ever growing kit. While often thought of as an adversarial judicial situation, a mediation is also a situation where a diverse group of people works together to forge a common product in the form of a settlement. While not every one of the issues and suggestions discussed below will be relevant to every mediator, this new behavioral and creative perspective may provide even a few useful tips and help lay the foundation for future work on this topic. By bringing in academic work on creativity and collaboration, mediators can improve their process from their ground rules, to the way that offers are exchanged, and even beyond settlements into the lives of mediators themselves.

I.    THE GROUND RULES

How extensive do the ground rules of a mediation have to be? Should a mediator try to ensure that all parties speak in a professional manner at all times or should a mediator try to allow for more expression of honest emotion even if it can get negative or derisive? Recent research on group processes suggests that in creative tasks, mixed gender groups perform better when norms of political correctness are highlighted.  While some may think that restricting speech may restrict ideas, narrowing down what people should say actually removes some of the uncertainty in communication, which can allow for better and more thorough expression of ideas and opinions. In a mediation, each party already has so many different concerns with everything being said: how will this seem to the mediator? Am I being honest enough? Am I being too honest? How will the other party view this statement? And so on.