This document summarizes a presentation on maximizing creativity in mediation by moving beyond traditional brainstorming models. It discusses how creativity involves both convergent and divergent thinking. Traditional brainstorming guidelines are critiqued and a new model is proposed that incorporates insights from neuroscience on how creativity occurs. Factors that can limit creativity like fear, status quo bias, and cognitive overload are also addressed.

1. MAXIMIZING
CREATIVITY IN
MEDATION
MOVING BEYOND TRADITIONAL
BRAINSTORMING MODELS
OCTOBER 10, 2014
ACR ANNUAL CONFERENCE
CINCINNATI, OHIO
Trainer:
Nina Meierding, MS, JD
Negotiation and Mediation Training Services
Bainbridge Island, Washington
nmeierding@gmail.com
www. mediate.com/ninameierding
No part of this manual may be reproduced without the permission of Nina Meierding,
COPYRIGHT: NINA MEIERDING, NEOGIATION AND MEDIATION TRAINING
SERVICES, ALL RIGHTS RESERVED, 2014.

2. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
2
Nina Meierding, MS, JD
Negotiation and Mediation Training
Beginning in 1985, Nina Meierding transitioned from a civil litigation practice to
mediation and has been a full-time mediator and trainer since 1987, mediating over 4,000
cases and training thousands of individuals. She also mediated for the California State
Department of Education in disputes involving special education services for students.
She has been an instructor at the National Judicial College in Reno, Nevada, as
well as the California Judicial College. Ms Meierding has been an Adjunct Professor at
Pepperdine University School of Law for over twenty years, at SMU (Southern
Methodist University) in Dallas for over fifteen years, as well as Lipscomb University for
over five years. She has taught mediation courses at the University of New Mexico
School of Law, University of Idaho School of Law and Jones School of Law in
Montgomery, Alabama.
She has provided customized training throughout the United States and abroad to
corporations, judicial districts, school districts, and government entities. In 1996 and
1997 she made three trips to India in conjunction with the Asia Development Bank,
Pepperdine University and the Ministry of India to provide training programs for
mediators. She has provided advanced training in England and Scotland for mediators
from 12 European countries, as well as in Ireland, New Zealand, Canada and the
Netherlands. She has presented workshops, and institutes at many conferences including
ACR, AFM, AFCC, SPIDR, IAM, CPA-Law Forum, EEAC, CEB, the Rutter Group, the
State Bar of California, and the Department of Consumer Affairs.
Nina is the mediation partner/technical advisor for the Wisconsin Special
Education Mediation System (WSEMS), which is one of four recognized exemplar
special education mediation programs in the United States.
She is the founding member and former President of the Board of Directors of the
Ventura Center for Dispute Settlement - the first non-profit community based mediation
center in Ventura County, California. She has served on the Board of Directors of the
Ventura County Bar Association, the Southern California Mediation Association
(SCMA), California Dispute Resolution Institute (CDRI)) and is a life member of the
Association of Family and Conciliation Courts. She is a past president of the Academy of
Family Mediators and has served on the Board of Directors for the Association for
Conflict Resolution. She was awarded the Peacemaker award by the Southern California
Mediation Association in 1992 for her work in advancing the field of conflict resolution.
In 2005 she received the John Haynes Distinguished Mediator Award from the
Association for Conflict Resolution, an annual international award given to the
outstanding mediator of the year.

3. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
3
Creativity Quotes
William James
”The creative process is a seething cauldron of ideas, where everything is fizzling
and bobbing about in a state of bewildering activity.”
Steve Jobs
“Creativity is just connecting things. When you ask creative people how they did
something, they feel a little guilty because they didn't really do it, they just saw
something. It seemed obvious to them after a while. That's because they were able
to connect experiences they've had and synthesize new things.”
Gail Sheehy
“Creativity can be described as letting go of certainties.”

4. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
4
Pablo Picasso
“The chief enemy of creativity is ‘good’ sense.”
Eleanor Roosevelt
“Never allow a person to tell you ‘no’ who does not have the power to tell you
‘yes’.”
Dr. Seuss – “The Cat in the Hat”
“Think left and think right and think low and think high. Oh, the thinks you can
think of, if you will only try!”

5. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
5
In order to have a greater possibility of durability, be creative in
all three areas of satisfaction.
Copyright: Pepperdine University School of Law, Straus Institute for Dispute Resolution, 2013.

6. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
6
Creativity and the Brain
• Imagination is not separate from other kinds of cognition. It is not in one part of
the brain. It is a combination of thought processes.
o The right hemisphere - remote association
 Spontaneous
 Unexpected
 Unfocused - expands the search
o The prefrontal cortex detects connections between related ideas.
 Focusing and distilling
 Connecting
 Analyzing
• The pre-frontal cortex, though a process called “cognitive disinhibition” or
“verbal overshadowing” screens out “unnecessary” information that it deems
irrelevant.
• The more focused your thinking and the more deliberate you are, the more
extraneous stimuli are screened. Less subtle, more creative ideas are lost.
• Productive daydreaming (relaxed thinking and free association) enhances
creativity.
• Fragmented thinking, which reassembles thoughts the “wrong way,” occurs
during sleep. These are called “binding errors.” Creativity is enhanced.
“A problem difficult at night is resolved in the morning after the
committee of sleep has worked on it.”
John Steinbeck

7. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
7
• An “a ha” moment is a spike in the gamma-wave rhythm - the highest electrical
frequency in the brain. It often happens when one might think the brain is at “rest”
– i.e., not focusing.
• Creativity is not linear - it is an overlapping of unrelated thoughts. It is a process
of convergent (focusing and connecting in one’s working memory) and divergent
(disengaging) thinking.
• Creativity is often preceded by frustration. But frustration should occur without
fear and not be due to personal attack.
• Creativity is difficult to produce “on demand.”
Notes:

8. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
8
What Can Limit Creativity
Fear of change
• Unique ideas feel riskier and if the action affords little or no benefit, the risk feels
bigger.
• A greater possibility of failure, worry about social rejection, loss of face,
uncertainty of completion, and criticism by others occurs.
• Unspoken negative associations with creativity exist even when there is a stated
preference for creativity.
• žIf someone is feeling fear, they are in a higher state of arousal. Their amygdalae
are “hijacked,” and it is, therefore, difficult to think creatively.
ž

9. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
9
• So, don’t:
o Tell people that they shouldn’t be so worried.
o Tell people they are exaggerating the problem and the risk.
o Tell people that as long as they are happy it doesn’t matter what other
people think.
• Instead try…
o Finding out the source of their fear of change
o Discussing their perspective of the cost/benefit ratio – not your
perspective.
o Acknowledging and validating their feelings.
o Reframe failure
Notes:

10. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
10
Status Quo Bias
The tendency to prefer the status quo and not to accept change, even when
past practice/beliefs become counterproductive
Ex: opt in vs. opt out choices
So, try…
• Neutral framing (all options are equal) vs. status quo framing (one choice
framed as status quo, the others as alternatives)
For example:
“Here are some ideas.” vs. “You may have done it that way
in the past, but are you open to new ideas?”
High and Low Uncertainty Avoidance
Uncertainty is a subjective feeling. Risk can be analyzed; uncertainty is felt.
High Uncertainty Avoidance
o Low tolerance for ambiguity, new ideas and risk.
o Desire to minimize uncertainty in most aspects of life.
o Wants detail; needs to discuss contingencies.
o Fearful of the unknown.
o High uncertainty avoidance is not related to trust.
Low Uncertainty Avoidance
o Higher tolerance for uncertainty
o More flexibility
o Openness for change
o Interested in experimenting with different ideas.

11. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
11
Situational Distrust
Situational distrust is situation specific and/or person specific. It often creates
reactive devaluation that causes a reluctance to embrace or support the other’s ideas.
Creativity flounders due to lack of trust.
So, try….
• Asking questions to determine whether the issue is HUA or situational
distrust.
For example:
“Do you normally like a lot of detail in your agreements?”
“Is there anything about the dynamics of this negotiation
that are different from your usual negotiations?”
• If situational distrust, working with trust issues
Is there anything that the other person can do that would
regain your trust?
• If HUA, normalizing the need to the other party (depersonalizing the need
for more structure/order/detail etc.)
Cognitive Overload
The amount of information is too great. The processing demands go beyond the
processing limits of the listener producing stress.
The listener is unable to integrate new information with what they already know.
Without connection or meaning, the information does not go into the short term
“working memory” and definitely not into long-term memory.

12. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
12
So try….
• Remembering “jars of jam”
• Individualizing the number of options/alternatives discussed based on an
individual’s cognitive capacity.
• Checking in and make sure you are not losing someone to “zoning out,”
“brain freeze,” overstimulation, or cognitive overload.
ž

13. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
13
Traditional Brainstorming
Developed by Alex F. Osborn in 1953 for use in his ad campaign company
ž
He set forth his brainstorming guidelines in the book, Applied Imagination
ž
Osborn’s Primary Guidelines:
o Create diverse groups – optimum size of 12.
o Focus on quantity of ideas
o No criticism or development of ideas.
o Keep going – no quitting
ž
But, does our newer knowledge in communication and neuroscience support
Osborn’s guidelines?
o Brainstorm together?
o More ideas and better quality if solitary thinking occurs. (18 of 22
studies)
ž
o More ideas are better?
o Too many ideas can be overwhelming and create cognitive
overload
ž
o No criticism?
o Constructive criticism, timed correctly, helps creativity.
o No quitting?
o Incubation helps creativity; without rest, decision fatigue can
occur.
ž

14. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
14
In addition, there are other problems with the brainstorming model.
o Free riders
o Not involved in the process - disengaged
ž
o Social matching
o Need for reciprocity or same level of production
ž
o Evaluation Apprehension
o Concerned about others’ opinions
ž
o Production Blocking
o One person takes over the process
ž
o Illusion of Group Productivity
o Primed to believe “group think” is better; self-evaluation
results higher
o Different learning and processing styles
o Monochronic and polychronic – linear vs. multi-processing
o Absorbers and reflectors
o Sequential vs. cross talking
Notes:

15. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
15
A New Model of Brainstorming and Creativity
• Be clear about the problem to be solved.
• Allow time for preparation.
• Realize creativity is a combination of convergent and divergent thinking.
• Don’t force one style of thinking over the other.
• Be cognizant of “absorbers” and “reflectors” in the room – give time for
incubation of ideas.
• Be sensitive to the amount of information/ideas that can result in “zoning
out” or “brain flooding.”
• Acknowledge that frustration can be a good thing.
• Do not set artificial time constraints.
• Slow the process down.
• Notice different levels of uncertainty avoidance and status quo bias. Do
not assume reluctance is lack of trust.
• Be aware of existing relationships and the potential for reactive
devaluation.
• Have a respectful discussion.
• Focus on quality.

16. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
16
• Don’t just brainstorm within your “sphere” (work, your friends, etc.) Be
diverse.
• Encourage different processing styles (auditory, visual, kinesthetic).
• Encourage debate and constructive criticism.
Notes:
ž

17. Copyright: Nina Meierding, Negotiation and Mediation Training Services, 2014.
17
References
Benjamin, Robert The Joy of Impasse: The Neuroscience of ‘Insight’ and Creative
Problem Solving, mediate.com, 2/2009.
žBrogan, Jan Why Being Distracted is a Good Thing, Boston Globe Health and
Wellness, 2/27/2012.
žCarson, Shelley Your Creative Brain: Seven Steps to Maximize Imagination,
Productivity, and Innovation in Your Life, Jossey Bass, 2010.
žHall, Edward The Dance of Life – The Other Dimension of Time, Anchor Books, 1984.
žHofstede, G. Cultures and Organizations – Software of the Mind, McGraw Hill, 1997.
žMueller, Melwani and Goncalo, The Bias Against Creativity: Why People Desire But
Reject Creative Ideas, Cornell University ILR School.
žRoland, Jon Questorming, www.pythan.com/vrl/questior.htm
žStroebe, W., Diehl, M. & Abakoumkin, G. "The illusion of group effectivity".
Personality and Social Psychology Bulletin 18 (5): 643–650, 1992.
ž
ž
.