Mayhew-Hite Report        Perspectives from Ohio’s DR Conference: Creativity in Mediation

Juan Camilo Osma Potes*

In this session,  Professor Jan Marie Fritz pushed participants to think about creativity in mediation. She defines creativity as a process in which individuals accept contradictions in a brainstorming session, which leads to the development and sharing of diverse ideas and perspectives, and may ultimately trigger the articulation of ideas which might resolve a problem. In mediation, this definition translates into an opportunity for the mediator to invite the parties to be creative in the resolution of their dispute.

Fostering creativity is one of the mediator’s tools in resolving disputes. One way a mediator can use creativity in mediation is to talk to the parties individually before commencing the mediation session. When a mediator is prepared for the mediation, it makes it easier for the mediator to think creatively.

The speakers discussed a mediation between father and son. The father divorced the son’s mother and married another woman. The father owned a company, and, before he got divorced, he transferred 55% of the company to his son. When the son learned his father was getting married, he decided to sell the company and break relations with his father. After the parties reached an impasse that appeared to be final, the mediator thought of an idea that eventually helped the parties to reach an agreement. The mediator, in this case, acted creatively and decided to focus on the social interest of the parties rather than the company.  Supporting this relational approach the mediator used PowerPoint slides and music to put the parties at ease. The PowerPoint slides had quotes such as “Son, I thought I would die at the age of 45, but after I got you I prayed every day to die at the age of 100,” or “Do you remember the first time we got an ice cream together and I offered you my ice cream when you wanted more? I would give everything for you son.” The music was specifically selected to put the parties at ease and made them realize their relationship was more important than any fight—including this transactional dispute. Examples like this illustrate how creativity can be an essential tool for mediators, particularly when engaged in disputes that require social acuity in addition to legal acumen.

Another way a mediator can think creatively is by choosing his or her words carefully. To illustrate this, Professor Fritz played a game in which she requested the attendees to think, in less than eight seconds, some potential uses for a given word. The closer you were to a good potential use of the word the more points you would get. For instance, Professor gave a noun and requested the attendees to change it for a verb that fits with it. But the verb had to creatively connect to the noun.  Using the noun “road”, she asked for the verbs that best fit that word. The words were scored on a scale from most appropriate to not appropriate at all. Those who thought “drive” got zero points, “walking” got 3 points, and “explore” got 4 points.

The exercise exemplified the importance of being prepared for mediation, having the time to think about creative ideas, and the importance of thinking “outside the box” in order to have a suitable outcome for a problem. A creative mediator is able to resolve a dispute in a 20-30 minute period of time. Creativity, therefore, can help to improve mediation sessions and can increase the interdisciplinary nature of mediation.

* Licensed attorney at Law in Colombia. Certified Conciliator at Law (2015). LL.M. Candidate at The Ohio State University Moritz College of Law (2018). LL.B. at Universidad de los Andes (2015). Contact: osmapotes.1@osu.edu, osmapotj@mail.lcc.edu, jc.osma969@uniandes.edu.co