Creativity in Mediation: An Important Role

By: Donald L. Swanson

Here are a couple assumptions:

• Mediation is a creative process: it allows parties to think outside the box, discuss underlying issues, and customize a creative resolution.
• Adjudication, by contrast, is not: it resolves specific issues identified in pleadings.

A Study

A study titled “Creativity in Court-Connected Mediation: Myth or Reality?” [Fn. 1] explores two questions about creativity in mediation:

1. To what extent can mediated settlements be characterized as creative?
2. Does a relationship exist between mediation creativity and the characteristics of a case?

–Unusual

The study is unusual:

• It uses mediated agreements as the basis for analyzing creativity, instead of relying on interviews, questionnaires, observational notes, etc.  Such an approach allows creativity to be judged with a high degree of certainty, based on concrete information.
• The study’s data consists of the complaint, answer and mediated settlement filed in 129 civil lawsuits [Fn. 2]. This data enables a comparison between, (i) the parties’ stated legal demands, and (ii) the terms of the mediated result.

–Creativity

Here’s how the study defines “creativity”:

• Creativity exists when a substantial element in a mediated settlement is not a part of the original demands filed in the court.

Examples of creative elements not included in the initial demand are:

• delivering services beyond those noted in the claim,
• paying interest at an unusually high or unusually low rate,
• apologizing, and
• including contingencies.

–Findings

• 65% of the settlements contain creative elements,
• 13% contain just one creative element,
• 52% have two or more creative elements, and
• 26% contain five or more creative elements.

Factors

The study identifies four factors accounting for the presence of creativity in some mediations but not others and examines the effect of each.  The factors are, (i) type of party, (ii) duration of the mediation, (iii) type of case, and (iv) size of the claim.

–First Factor: Type of Party

As to types of parties, the study identifies three types of cases:

1. Private individual versus private individual,
2. Business entity versus business entity, and
3. Private individual versus business entity.

A statistically significant pattern emerges from the study based on types of parties:

• 64% of settlements between private individuals include two or more creative elements,
• 30% of settlements between businesses include two or more creative elements, and
• 52% of mixed-party settlements include two or more creative elements.

Such a pattern makes sense, the study suggests, because individual parties tend to be more invested, personally, in the dispute and its result than are representatives of a business.

–Second Factor: Duration of Mediation

The average duration of the mediations studied is three hours.

The study finds that sessions lasting more than three hours are more creative than sessions lasting less than three hours. This distinction proves to be “statistically significant”:

• 65% lasting more than three hours have two or more creative elements, and
• 34% lasting less than three hours have two or more creative elements.

For settlements containing one or no creative elements, the pattern is reversed:

• 66% of those lasting less than three hours have one or none, while
• 35% of those lasting longer than three hours have one or none.

Such a result makes sense, the study suggests, because mediation takes time: the process of discussing disputes, developing trust, and identifying and evaluating creative solutions cannot happen quickly.

–Third Factor: Type of Case

The study divides disputes into four types of cases: workplace disputes, disputes regarding inheritance or a division of property in divorce, contractual disputes, and property disputes.

The study finds statistically significant differences in settlements between types of cases:

• 72% of inheritance and divorce settlements contain two or more creative elements,
• 67% of workplace settlements contain two or more creative elements,
• 65% of property dispute settlements contain two or more creative elements, but
• 37% of contract dispute settlements contain two or more creative elements.

Such findings make sense, the study suggests, because contract disputes are frequently over money—and nothing else. Other types of disputes have different types of issues and concerns.

–Fourth Factor: Amount

The study also looks for a relationship between the amount of money in dispute and creativity.  The study divides cases into three amount categories:

1. Those with up to $9,000 in dispute;
2. Those with $9,000 to $91,000 in dispute; and
3. Those with more than $91,000 in dispute.

The study results show this: as the amount in dispute increases, so does the likelihood that a mediated settlement will involve greater creativity.

• The most creative settlements are attained in the largest value cases: 56% of settlements in largest cases include two or more creative elements.
• The fewest number of creative elements are in cases with the lowest amount of money in dispute: 65% have one or none.

Such results make sense, the study suggests, because when more is at stake the desire for creative solutions is stimulated.

Other Findings

The study finds that creativity has an important role to play in mediation:

• Almost two thirds of mediated settlements in the study include creative elements;
• Complex settlements with five creative elements or more occur in 26 percent of cases in the study—these are often detailed and intricate agreements that differ dramatically from judgments;
• Creativity makes mediation a valuable tool—value arises from thoughtful consideration and discussion of underlying interests and needs; and
• Mediators should work deliberately toward achieving creative resolutions.

Conclusion

Creativity plays an important role in mediation. It’s one of the things that makes mediation valuable.

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Footnote 1:  The study is by, (i) Lin Adrian, assistant professor of law at the University of Copenhagen in Denmark, and (ii) Solfrid Mykland, assistant professor of engineering and business administration at Bergen University College and at the Norwegian School of Economics (NHH) in Norway. And it is published at 30 Negot. J. 421 (2014).

Footnote 2:  The study focuses on mediated settlements from the Danish and Norwegian systems of court-connected mediations. In such systems, mediation typically occurs shortly after the complaint and answer are filed.

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