Brainstorming (or option building) ideas is a crucial component of the collaborative process. Collaborative practice provides an open environment that encourages everyone on the team to participate. The participants should feel as though their thoughts are being heard and their interests validated.
Collaborative professionals will encourage active listening in a casual environment. If team members are relaxed enough to chat and crack jokes, then they’ll produce more creative ideas. On the other hand, too much levity raises concerns for the clients that their concerns aren’t being taken seriously, so collaborative professionals will be conscious of the fine line between “comfortable enough” to encourage inspiration, and “not too relaxed” so as to disconcert the clients.
This option building step follows the clients’ identification of goals and interests. The objective is to answer the question, “How many different ways might we satisfy these interests and resolve inevitable conflicts between the two people?” Brainstorming should be a fast-paced exercise in which the participants do not have time to self-evaluate or to form preconceptions about options. Ideas should be tossed out to the group in an uninhibited, innovative fashion.
Someone on the collaborative team will pull out the chalkboard or the flipchart and the multicolored chalk or pens. One team member will be appointed to record every idea, taking brief notes so that ideas are not forgotten or misplaced, and team members are able to build on ideas that have already been mentioned and noted on the board.
No suggestion is a “bad” one. The team should be encouraged to think “outside the box” and discouraged from criticizing any of the ideas, at least not at this time. (Evaluation of ideas is a different process from the creative option building process.) Encourage the participants to suggest even “ridiculous” ideas because these may well lead to more fruitful options.
Avoid evaluation at this point to sustain receptivity to all the potential alternatives. Judgment and analysis stunts idea generation and limits creativity. Offering a wide variety of options, which later can be compared and contrasted to each other, which in turn sometimes leads to options yet unidentified, ultimately leads to the best chance of reaching an agreement that addresses the clients’ most important concerns and interests.
Before brainstorming, the professionals are likely to remind participants of their goals, encourage them to forget about their positions, and coach them to focus on their interests. They will urge the clients to explore options, even if they do not feel that they are feasible alternatives. (No self-evaluation here either!) Sometimes ideas that seem completely unlikely lead to very reasonable (and acceptable) solutions.
However, while it is good to keep an open mind, it is also important to separate participants from positions that are absolutely unacceptable.
When later evaluating options, the collaborative professionals will discuss with the clients the ideas of BATNA (the best alternative to a negotiated agreement) and WATNA (the worst alternative to a negotiated agreement). A client should not expect that s/he will receive his or her best alternative or that the other client will agree to his or her worst alternative. They should recognize their agreement ranges; at this stage, the professionals will work hard to deflate either side’s inflated expectations.
Small Steps are Better
In option building, small components are easier to manage than large issues, so implement a course of baby steps. Begin brainstorming by discussing what choices are already working for the spouses. Next, develop objective standards for a plausible agreement. Talk openly and frankly, bouncing ideas off of one another. Discuss reasonable hypothetical scenarios. Here the professionals will suggest alternative approaches that have worked in other cases, bringing their expertise to the table.
Consider that left-brained thinkers and right-brained thinkers explore options differently, and the team is likely to have both participating. While left-brained thinkers benefit less from a cluttered process, right-brained thinkers don’t shy away from chaos. Be aware that the note taker is likely to record based on which “brain” he utilizes most. His approach may stress some of the folks in the room, so, while he should be efficient, he should also try to do so in a way that appeals to both types of individuals.
The team should limit itself to a specific period of time or number of ideas for this session. This will maintain the quick pace of brainstorming which is important when generating options.
Once the participants have given many ideas, begin to tweak and trade possibilities in order to move toward the final agreement. Evaluation begins here; this is the time to explore solutions further, using conventional approaches. Determine how the participants’ interests can be met by the proposed solutions. Discuss the cost and benefit to each client for each suggestion. Take time to have each imagine stepping into the other’s shoes and analyze whether s/he would be happy with the proposal if s/he was on the opposing side.
Through brainstorming, collaborative team participants are able to explore many different scenarios in their pursuit to reach an effective agreement.
An agreement should not be left to chance. You can plan how to separate your lives through collaborative dispute resolution. You can also plan to build a life together through collaborative life planning. If you’re interested in learning more about either process, reach out to us at Open Palm Law.
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About this week’s author, Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.