What do you do with your client during the mediation dead-zones, when the mediator is down the hall with the other side? Sometimes work needs to be done, such as crunching numbers. But often this significant chunk of time is spent awkwardly chit-chatting about nothing in particular.
Curt Rosengren, "Passion Catalyst" and columnist for Motto Magazine, says that when people are in a mediation or business meeting, it's best if they can bring a "whole brain" approach to problem solving. By whole brain, he is referring to using the right and left sides of the brain in tandem to make decisions. The right side is associated with creative thinking; the left side with rational, linear thinking.
"Typically, people are grossly one-sided," Rosengren says. "It's as if they have been doing left-sided squats and curls, leaving the right side of the brain to atrophy like the 90-pound weakling on the beach. Anything you can do to knock that other side loose will help with coming up with more robust solutions that might never have been thought of otherwise."
Rather than idling the time away waiting for a counter-proposal, here are three practical ways to engage the imaginative, emotional centers of your client's brain.
The "Dive Down" Exercise. David Winkler, an organizational and leadership consultant with Valeo Consulting, teaches in his Mission Controlª workshop the "dive down" exercise to help clients find the core issue underneath a concern. The process is simple. Ask your client to name a "hot button" concern at the top of a piece of paper. For example, "I must get the house" or "the settlement has to be at least $100,000." The trick is identifying an issue that packs an emotional punch or is a sticking point in the settlement.
Next, have your client answer the question in writing, "Why does this matter?" Whatever answer the client writes down, the client is to ask himself or herself another "why" question. Why is this important? Why do I care? The client continues answering why questions until reaching a rock-bottom reason.
You know you've hit the bottom when the answer becomes something universally true, such as "I want to feel safe." Another clue the client has hit a core belief or core-level need is when you start to get answers that sound similar or are versions of the same theme. Once the core need is identified, it opens the possibility of finding other solutions that may satisfy.
The 25-Idea Brainstorm. This is an activity utilized frequently by Mastermind Groups. I used it recently at a mediation to resolve a choice of religion issue in a divorce matter. While Larry Besk was out of the room, my client and I each numbered blank sheets of paper from 1 to 25. Then, as fast as we could, we each came up with 25 ideas for things that might break the stalemate.
The idea is to write down any remotely plausible idea and avoid censoring. I came up with ideas such as let the issue go and allow your children to become fundamentalist wackos, and raise the children in another faith. Shabby, ridiculous solutions make the more feasible options stand out. Of our combined 50 ideas, my client and I selected 15 viable suggestions for consideration by the other side. The group eventually settled on one of our original 50 ideas.
The rules of this activity are: Go fast, don't think while writing and no criticizing. Laughing is okay.
A Picture to Signal the Ideal Outcome. Another simple way to break open creativity and the right side of the brain during mediation is by bringing paper and crayons with you to the mediation. Remember the fun you had in kindergarten doing crayon drawings? As adults we don't often get the chance to engage in this simple form of creativity and pleasure.
Dr. Bernie Siegel, best-selling author, recommends drawing as a way to create inner resolution and draw forth important information from our interior mind. He recommends in particular two types of drawing: a drawing about our present situation and a picture of what an ideal outcome would look and feel like.
Sometimes the visual images produced can become the metaphor around which a concrete and detailed settlement can be built. The pictures also can be shared with the opponent, to convey what words sometimes fail to convey.
As lawyers, we're often accused of being too results oriented. By participating in activities that access the right side of the brain, you and your client will be entering a more receptive, circuitous side of our brain. As Rosengren says, "Whole brain thinking leads to whole solutions. You wouldn't want a lop-sided body, why would you want a lop-sided result?"
