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Creativity and Problem-Solving
Jennifer Gerarda Brown*
Editors’ Note: It’s routine for people to recognize that negotiations demand creativity. It also seems routine for negotiations to result in rather uncreative solutions, in which many opportunities for a better deal all around were missed. In this chapter, Brown suggests some ways to break out of the predictable—and to get your counterpart to do so too.
This chapter is republished from the same editors’ Negotiator’s Fieldbook (American Bar Assoc. 2006). We appreciate the ABA’s courtesy in agreeing to this republication. Although this chapter was not updated for the NDR, we believe it continues to be a unique and valuable resource. Some formatting has been updated; the text of the chapter is unaltered.
Negotiation experts seem to agree that creative solutions are often the key to reaching value-maximizing outcomes in integrative, interest-based bargaining. Sticking to the problem as it is initially framed and considering only the solutions that most readily present themselves will sometimes yield optimal results, but more often, situations will require the parties and their representatives to think more expansively. This process of thinking more expansively is often referred to as creativity or creative thinking. Some commentators distinguish creative thinking from creativity, arguing that creativity “is more value-laden and tends to be often linked with art (in its broad sense)”.[1] Creativity might seem to resemble any other artistic quality, something people lack or possess as much as a matter of genetics as anything else. And yet, like other artistic qualities (observation, hand-eye coordination, vocabulary, or writing skills), creativity may be teachable—or at least, whatever quantity one has as a matter of natural endowment might be enhanced with the right training.[2] On the theory that both creativity and creative thinking can be enhanced with some training and work, this essay will use the terms interchangeably.
The focus of this chapter will be on some methods for teaching and practicing creativity. I discuss the technique most commonly taught in negotiation courses as well as some newer, perhaps more obscure methods. This chapter closes with some questions about the applicability of “creative thinking” to the field of negotiation.
Beyond Brainstorming
Most teachers and trainers of interest-based negotiation will spend some time teaching creative thinking. Following the template set forth in Getting to Yes, they will encourage their students to “brainstorm.” Brainstorming is a somewhat formalized process in which participants work together to generate ideas. I say that it is formalized because it proceeds according to two important ground rules: participants agree not to evaluate the ideas while they are brainstorming, and they agree not to take “ownership” of the ideas. They strive to generate options and put them on the table, no matter how wacky or far-fetched they may seem. The “no evaluation” rule encourages participants to suspend their natural urge to criticize, edit, or censor the ideas. Evaluation can come later, but the notion here is that solutions will flow more easily if people are not assessing them even as they articulate them. The “no ownership” rule also facilitates innovation because participants are encouraged to feel free to propose an idea or solution without endorsing it—no one can later attribute the idea to the person who proposed it, or try to hold it against that person. People can therefore propose ideas that might actually disadvantage them and benefit their counterparts without conceding that they would actually agree to such proposals in the final analysis.[3] The ground rules for brainstorming constrain the natural inclination to criticize, so that participants are free to imagine, envision, and play with ideas, even though these processes come less easily to them.
Why is brainstorming so popular, both in practice and in negotiation training? Perhaps the answer lies not so much in what it activates, but in what it disables. What I mean is that it may be easier to teach people what not to do—rather than what to do affirmatively—in order to enhance their creative thinking. We may not know much about how to unleash new sources of creativity for negotiators, but we’re pretty sure about some things that impede creative thinking. Theory and practice suggest that creative thinking is difficult when people jump to conclusions, close off discussion, or seize upon an answer prematurely. Indeed, the very heuristics that make decision-making possible—those pathways that permit people to make positive and sometimes normative judgments [Korobkin & Guthrie, Heuristics]—can lead people astray. One of the ways they may be led astray is that the heuristic prompts them to decide too quickly what something is or should be. Once judgment has occurred, it is tough to justify the expenditure of additional energy that creative thinking would require. Creativity could be considered the “anti-heuristic”; it keeps multiple pathways of perception and decision-making open, even when people are tempted to choose a single, one-way route to a solution. If we do nothing else, we can attempt to delay this kind of judgment until negotiators have considered multiple options. Brainstorming provides the structure for this kind of delay.
But is brainstorming the only technique for enhancing creativity? The answer would seem to be an easy “no.” Psychologists and other specialists in creative thinking have much to teach us beyond brainstorming.[4] In a Clinical Law Review article, Janet Weinstein and Linda Morton survey some of the literature on “creative thinking” and suggest “several specific techniques to encourage its inception.”[5] Barry Nalebuff and Ian Ayres have similarly proposed specific techniques to facilitate creative problem-solving.[6] This section will summarize these suggestions.
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For full contents please purchase The Negotiator’s Desk Reference.
Endnotes
*Jennifer Gerarda Brown is Dean and Professor of Law at Quinnipiac University. A.B. Bryn Mawr College, J.D. University of Illinois College of Law. Brown clerked for the Hon. Harold A. Baker, U.S. District Court (C.D. Ill.) and litigated at Winston & Strawn in Chicago before turning to academe. In 1994 she joined the Quinnipiac faculty. From 1997 until 2013, when she became dean, Brown served as Director of Quinnipiac’s Center on Dispute Resolution. She has also served as a visiting lecturer and senior research scholar at Yale Law School. Her teaching and scholarship focus on ADR, LGBT rights, and lawyers' professional responsibility.
[1] Janet Weinstein & Linda Morton, Stuck in a Rut: The Role of Creative Thinking in Problem Solving and Legal Education, 9 Clinical Law Review 835, 838 (2003).
[2] See generally Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education, 6 Harvard Negotiation Law Review 97, 122 (2001).
[3] For material on brainstorming, see Roger Fisher, et al., Getting to Yes: Negotiating Agreement Without Giving In 56-62 (2d ed. 1991); Robert Mnookin, et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes 37-39 (2000).
[4] On the other hand, empirical research on enhancing creativity is sparse, and much of what is said about it is probably speculative. Raymond Nickerson, Enhancing Creativity, in Handbook of Creativity 392 (Robert J. Sternberg ed. 1999).
[5] Weinstein & Morton, supra note 1, at 837.
[6] Barry Nalebuff & Ian Ayres, Why Not? How to Use Everyday Ingenuity to Solve Problems Big and Small (2003).
This chapter is republished from the same editors’ Negotiator’s Fieldbook (American Bar Assoc. 2006). We appreciate the ABA’s courtesy in agreeing to this republication. Although this chapter was not updated for the NDR, we believe it continues to be a unique and valuable resource. Some formatting has been updated; the text of the chapter is unaltered.
Negotiation experts seem to agree that creative solutions are often the key to reaching value-maximizing outcomes in integrative, interest-based bargaining. Sticking to the problem as it is initially framed and considering only the solutions that most readily present themselves will sometimes yield optimal results, but more often, situations will require the parties and their representatives to think more expansively. This process of thinking more expansively is often referred to as creativity or creative thinking. Some commentators distinguish creative thinking from creativity, arguing that creativity “is more value-laden and tends to be often linked with art (in its broad sense)”.[1] Creativity might seem to resemble any other artistic quality, something people lack or possess as much as a matter of genetics as anything else. And yet, like other artistic qualities (observation, hand-eye coordination, vocabulary, or writing skills), creativity may be teachable—or at least, whatever quantity one has as a matter of natural endowment might be enhanced with the right training.[2] On the theory that both creativity and creative thinking can be enhanced with some training and work, this essay will use the terms interchangeably.
The focus of this chapter will be on some methods for teaching and practicing creativity. I discuss the technique most commonly taught in negotiation courses as well as some newer, perhaps more obscure methods. This chapter closes with some questions about the applicability of “creative thinking” to the field of negotiation.
Beyond Brainstorming
Most teachers and trainers of interest-based negotiation will spend some time teaching creative thinking. Following the template set forth in Getting to Yes, they will encourage their students to “brainstorm.” Brainstorming is a somewhat formalized process in which participants work together to generate ideas. I say that it is formalized because it proceeds according to two important ground rules: participants agree not to evaluate the ideas while they are brainstorming, and they agree not to take “ownership” of the ideas. They strive to generate options and put them on the table, no matter how wacky or far-fetched they may seem. The “no evaluation” rule encourages participants to suspend their natural urge to criticize, edit, or censor the ideas. Evaluation can come later, but the notion here is that solutions will flow more easily if people are not assessing them even as they articulate them. The “no ownership” rule also facilitates innovation because participants are encouraged to feel free to propose an idea or solution without endorsing it—no one can later attribute the idea to the person who proposed it, or try to hold it against that person. People can therefore propose ideas that might actually disadvantage them and benefit their counterparts without conceding that they would actually agree to such proposals in the final analysis.[3] The ground rules for brainstorming constrain the natural inclination to criticize, so that participants are free to imagine, envision, and play with ideas, even though these processes come less easily to them.
Why is brainstorming so popular, both in practice and in negotiation training? Perhaps the answer lies not so much in what it activates, but in what it disables. What I mean is that it may be easier to teach people what not to do—rather than what to do affirmatively—in order to enhance their creative thinking. We may not know much about how to unleash new sources of creativity for negotiators, but we’re pretty sure about some things that impede creative thinking. Theory and practice suggest that creative thinking is difficult when people jump to conclusions, close off discussion, or seize upon an answer prematurely. Indeed, the very heuristics that make decision-making possible—those pathways that permit people to make positive and sometimes normative judgments [Korobkin & Guthrie, Heuristics]—can lead people astray. One of the ways they may be led astray is that the heuristic prompts them to decide too quickly what something is or should be. Once judgment has occurred, it is tough to justify the expenditure of additional energy that creative thinking would require. Creativity could be considered the “anti-heuristic”; it keeps multiple pathways of perception and decision-making open, even when people are tempted to choose a single, one-way route to a solution. If we do nothing else, we can attempt to delay this kind of judgment until negotiators have considered multiple options. Brainstorming provides the structure for this kind of delay.
But is brainstorming the only technique for enhancing creativity? The answer would seem to be an easy “no.” Psychologists and other specialists in creative thinking have much to teach us beyond brainstorming.[4] In a Clinical Law Review article, Janet Weinstein and Linda Morton survey some of the literature on “creative thinking” and suggest “several specific techniques to encourage its inception.”[5] Barry Nalebuff and Ian Ayres have similarly proposed specific techniques to facilitate creative problem-solving.[6] This section will summarize these suggestions.
….
For full contents please purchase The Negotiator’s Desk Reference.
Endnotes
*Jennifer Gerarda Brown is Dean and Professor of Law at Quinnipiac University. A.B. Bryn Mawr College, J.D. University of Illinois College of Law. Brown clerked for the Hon. Harold A. Baker, U.S. District Court (C.D. Ill.) and litigated at Winston & Strawn in Chicago before turning to academe. In 1994 she joined the Quinnipiac faculty. From 1997 until 2013, when she became dean, Brown served as Director of Quinnipiac’s Center on Dispute Resolution. She has also served as a visiting lecturer and senior research scholar at Yale Law School. Her teaching and scholarship focus on ADR, LGBT rights, and lawyers' professional responsibility.
[1] Janet Weinstein & Linda Morton, Stuck in a Rut: The Role of Creative Thinking in Problem Solving and Legal Education, 9 Clinical Law Review 835, 838 (2003).
[2] See generally Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education, 6 Harvard Negotiation Law Review 97, 122 (2001).
[3] For material on brainstorming, see Roger Fisher, et al., Getting to Yes: Negotiating Agreement Without Giving In 56-62 (2d ed. 1991); Robert Mnookin, et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes 37-39 (2000).
[4] On the other hand, empirical research on enhancing creativity is sparse, and much of what is said about it is probably speculative. Raymond Nickerson, Enhancing Creativity, in Handbook of Creativity 392 (Robert J. Sternberg ed. 1999).
[5] Weinstein & Morton, supra note 1, at 837.
[6] Barry Nalebuff & Ian Ayres, Why Not? How to Use Everyday Ingenuity to Solve Problems Big and Small (2003).