Editor’s note: In his new book, Creative Problem Solver’s Handbook for Negotiators and Mediators (ABA Dispute Resolution Section, 2005), Jack Cooley explores the ways in which creative problem solving techniques can be used by mediators and negotiating attorneys to first rethink or "design" their clients’ problems and then find imaginative ways by which to solve those problems. Looking first at the ways in which people reason, imagine and think through their environments and experiences, and then progressing through a series of articles and studies on the subject, Cooley’s book provides an array of insights into how we as lawyers may redefine the ways in which we handle our clients’ legal problems. The book is being published by the American Bar Association and will include contributions from a number of local mediators and judges, including Professor Lynn Cohn, Peter S. Adler, the Hon. Morton Denlow, and Robert H. Mnookin, among others. Following are excerpts from an advance copy of the book, courtesy of the ABA Section of Dispute Resolution (www.abanet.org/dispute for info and orders): Over the past half-century there has been growing interest among psychologists, educators, and behavioral researchers to study creativity and to construct problem solving models which optimize the use of creative skills and abilities of people to achieve quality solutions to problems. As a result of the efforts of many experts in these fields, several models of problem solving have been developed under the rubric of "creative problem solving" ("CPS").... [T]he definition of creative problem solving is not static; its meaning is different to different people and it is dynamic in the sense that the experts are still studying and experimenting with different models.
In his book, New Thinking for a New Millennium, Edward de Bono asserts that design thinking is the type of thinking that creative problem solvers of the future must learn and use. Specifically, he points out: Design thinking is very different from traditional judgment thinking. For judgment thinking, the desired output is truth. For design thinking, the output is value. For logical thinking, certainty is essential. For design thinking, possibility is essential. Logical thinking likes to work with facts. Design thinking has to work with perception. The three most important things in design thinking are: perception, possibility, and practicality (the three P’s)1 A dispute is merely a problem, and it is susceptible to resolution through the application of well-known problem solving techniques. It is important for you to understand that resolution of any dispute requires the solving of three separate design problems: (1) designing (or, if you prefer, finding or defining) the problem itself; (2) designing the process for solving the designed problem; and (3) designing the solution to the defined problem by using the process you designed. Sometimes, depending on the particular situation, the mind operates to solve these three design problems in sequence; at other times it resolves the design problems simultaneously....
The concept of designing a problem may be difficult for you to grasp at first. But if you think about it, you will realize that every time you attempt to solve a problem, the problem has already been designed in your mind. If the problem is a dispute, your perception of the disputants, their conduct and related events have played a significant role in this design process; so have your assumptions, emotions, and probably, in most cases, your cliche patterns of thinking. Your interpretive design of the dispute may occur simultaneously; and may be only one of myriad designs available. What your instantaneous design powers produce as a problem may, in fact, if viewed or perceived from a different angle, be an opportunity for change a betterment of some kind. What is initially perceived by you as a problem may be no problem at all. Any time spent by you in solving it would be wasted.
The idea of problem design may, additionally, seem foreign, because our culture and educational system (particularly mathematics and science courses) traditionally present ot us single-solution problems already designed. We are rarely given an opportunity in school to design problems. Yet this is a primary task in everyday life, particularly for the lawyer. Let’s take a closer look at what problem design means.
At the root of all disputes are human needs or interests which appear to conflict or which are unsatisfied to some extent. For example, consider Russ, a self-styled mechanic, who tinkers with his car late into the night and revs up the engine in the driveway under his neighbor Bob’s bedroom window. Bob’s problem is not Russ or Russ’s car. Bob’s problem is the conflict between Russ’s need to repair his car at that particular time and Bob’s need for sleep. His simple example can be extrapolated to the problems precipitating the most complex of lawsuits filed in any of our courts today. At the core of these lawsuits is a simple conflict of the parties’ needs or interests. That is what makes the first aspect of problem solving (i.e., problem design) so important. Parties’ needs or interest may, in any particular situation, be satisfied in a variety of ways, and sometimes in a way that is better than either’s needs or interests could have been satisfied had the conflict or encounter not occurred (i.e., win-win-, optimal, or super-optimal solution)....
After full consideration of all facets of a particular dispute, it may turn out that satisfaction of a disputant’s needs may be best achieved by allowing a third party to determine which disputant has a right to have his needs satisfied. This requires resorting to the law. Then the problem design shifts from a needs analysis to a rights analysis. There may be many problem designs possible under a rights analysis, just as there were under the needs analysis all of these possibilities are explored and evaluated in the problem design mode.2
After designing the problem by defining the parties’ root needs and interest the next step is to design the process for solving it. The number of approaches one can take to solve a problem is limited only by the extent of one’s insight and creativity. As lawyers, many of us are prone to see only one or two possible approaches to solving a problem, even though many more might exist. Normally, we try first to negotiate a solution to a problem, using methods and techniques which have succeeded for us in the past. However, depending on the parties, lawyers, and nature of the problem involved, a different negotiation approach or combination of approaches might be necessary to achieve success. Lawyers are often blind to these combined approached because of their past negotiation ritual. In these situations, a mediator can be most helpful in adjusting the process to meet the needs of the redefined problem and in facilitating the generation of creative solutions. When designing your own negotiation, mediation, or other ADR process, or when assisting parties in designing an appropriate ADR process for a dispute, your goals should include ensuring that all parties are satisfied that:
• They have a sufficient opportunity to evaluate the design proposals;
• They have a sufficient opportunity to offer design input and to collaborate in fashioning the ultimate design;
• The ultimately selected design is fair to them individually and collectively;
• The ultimately selected design gives them a reasonable opportunity to negotiate a result for themselves rather than have a result imposed on them;
• All concerns regarding confidentiality are met;
• The ultimately selected design is a more economical alternative than court adjudication;
• The ultimately selected design will not significantly prejudice the positions and strategies should ADR be unsuccessful, thus requiring them to seek court adjudication.
Being optimistic is a very important aspect of the creative problem solver’s orientation in negotiation and mediation. Optimism has a tendency to move parties toward a mutually acceptable solution, or if they cannot find a totally acceptable solution, to see the good aspect of a lesser solution and find satisfaction in that. As one expert in creative problem solving for lawyers has said, "Optimism is complementary to perseverance; if we do not believe that a successful outcome is possible, we have no reason to persevere. Optimism may also be related to happiness, which has a positive effect on the activity of the prefrontal cortex [of he brain] where our problem solving occurs"3
Creative problem solving originates with an assumption of not knowing, a confession of ignorance, a kind of bafflement, and a surrender to curiosity. It was Socrates who taught that if one could convince himself that he knew nothing, he would be at the threshold of wisdom. And that is the manner in which the creative problem solver should approach a problem. It was through the recognition of his ignorance that Socrates became the greatest of all teachers. In modern time, Michael Ray and Rochelle Myers, creativity experts at Stanford Business School, suggest four heuristics of preparation for creative problem solving: ( 1) if you don’t succeed at first, don’t surrender; (2) destroy judgment and create curiosity; (3) pay attention; and (4) ask dumb questions. Zen master, Shunryu Suzuki explains it this way: "If your mind is empty, it is always ready for anything; it is open to everything..."4
It was the Roman philosopher Epictetus who observed that "it is impossible for a man to learn what he thinks he already knows:). "Being open to new possibilities is foundational for creative thinkers:5 As Maslow suggested, people who are very concerned with how others think of them . . . and who are rigid and careful, have a difficult time being creative. They may not be in touch with their individuality, or may not allow themselves the freedom to express it."6. Creative thinkers are always agreeable to suspending judgment.
The effective creative problem solver is flexibly perceptive. This means that the creative problem solver is willing at anytime to try a new direction, approach, or idea to solve a problem. The creative problem solver has a great capacity to tolerate ideas and suggestions from other people and to try to apply them to the problem at hand.
Tolerance for ambiguity, or a willingness to "remain in uncertainties," had been said to be central to creative problem solving. Such tolerance allows problem solvers to "leave the problem open" for indefinite periods of time, and increases the probability that either the problem, the process, or the solution will be redesigned.7
The creative problem solver is continuously oriented not only to see problems, processes, and solutions in different ways, but also to do things differently to ind a solution to the overall problem. In short, the creative problem solver must be oriented to improvise. In the arts, improvisers develop their skills by working with each other in a number of loosely structured contexts. Jazz musicians, for example, are conscious of the underlying form of the pieces they perform. They listen closely to each other for direction. When they sense a reaction from their audience or hear another player has taken on a more dominant voice, they call on their knowledge of rhythm, harmony, and balance, to back them up. When a break occurs in the melody, if they hear that a space has been left for them, they take control. They steer the sound in a new direction, developing their solo performance on the sounds and the creations of which they have been part. This goes on until another break occurs and the time comes to make space for some other member of the ensemble. All the while, they are conscious of underlying form. So too, the creative problem solver improvises.
The creative problem solver needs to be able to do more than just generate ideas for potential solutions. He or she must also be skilled in analyzing and evaluating them, in placing them in an appropriate context and determining which solution or solution(s) most optimally satisfy the needs of the problem and its parameters.
Finally, the creative problem solver realizes that his or her goal is to achieve quality decision making, working individually or in a group. The quality of the decision (result) will be directly related to the quality of the generative, analytical, and evaluative thinking, used in designing the problems, the process and the solution or solutions.
"Imagination is more important than knowledge." – Albert Einstein.
Famous for the above quotation, Einstein is also noted for having a knack to pose questions that no one had posed before, and then to arrive at an answer that changed for all time the way in which scientists, and eventually lay persons, construed the universe.8 His creative genius lay in his persistent questioning of the absoluteness of time and space. As a teenager, he pondered what his experience would be like if he were operating from the point of view of light - or, if he rode on a beam of light. By this metaphor, he eventually was able to formulate his theory of relativity. He asked himself a question that challenged the way other people might view time and space. He asked "what if" - What if I were looking at a clock, but I was flying away from it at the speed of light. He concluded that the time on the clock would be frozen because a new hour could never travel fast enough to catch up with him. On the beam of light, the time on the clock would remain perpetually the same.... Just like Einstein, you can use these and other creative problem solving strategies ... to achieve quality solutions in your negotiations and mediations.
In his book , What a Great Idea!, Charles Thompson describes a four-step strategy to foster an innovative mindset for solving problems creatively in all aspects of life. The first step is to recognize that you personally, and everyone with whom you inter-relate, have the "freedom to be creative" (an expression I use in practically every mediation that I conduct). He suggests people have various creative talents to contribute to the creative problem solving process. He believes that, in relation to ideas, some people are better generators or ideas, some are better promoters, some are better at designing solutions, others at implementing them, and still others, at evaluating. He further believes that the three keys to successful creative problem solving: the ability to recognize that all of these types of talents or abilities are necessary for success in creative problem solving; the ability to see yourself as you are and as other people most likely see you; and the ability to other creative styles on for size. The "freedom" step is an important one because it recognizes that good solutions to problems spring from a multiplicity of possible solutions. He identifies the "top 40 Killer Phrases," that stifle free flow of ideas and discourage creativity. Some of these Killer Phrases are: "Yes, but... "; "We’ve always done it this way ... "; "Don’t rock the boat ... "; "It’ll never fly ... "; "If it ain’t broke, don’t fix it...".
Thompson’s second step in his four-step strategy for an innovative mindset is freedom of expression - perhaps more accurately, freedom to ask questions. He advocates the asking of dumb (translation: elementary) questions. Some example of dumb questions that he offers are: "Why have we always done it that way?"; "Does anybody actually look at that form?"; "Why do I need a hard copy of this report?"; "Why do we need a committee to look into this?"
The third step is creation- the freedom to play, or more precisely, to have fun. Thompson advocates a "see the future" approach to creative problem solving. The goal of envisioning the future is to return from the future, incrementally one step at a time. In doing so, picture all the moves you (or the organization, group, etc.) had to make to reach the result. In this third step, Thompson sees the obstacle to creation not to be reality itself, but rather "reality: as we assume it to be. The creative person, Thompson suggests, "escapes" into other realities - worlds where the future happens right now, where everything morphs into its opposite, where things we believe are true, just are not, where the normal point of view is abandoned, and everything is metaphorical.
The fourth step is action this is the phase where the ideas become reality. This is the stage where innovation meets utility. Action involves the ability to effectively communicate change to foster acceptance. It is the experience of working anew, with others, in creative concert.
Consider this simple problem: How many ways can a square be divided into four equal pieces? Faced with this problem, a problem solver might thinks of ways to cut up the square by (1) slicing it into four equal strips from left to right; (2) drawing intersecting diagonals, yielding four equilateral triangles; and (3) drawing a cross within the square yielding four smaller squares.... [T]he creative problem solver would challenge the assumption that there are a finite number of rules governing ways that a square could be divided into four equal pieces. Looking again at the solutions generated, he or she would focus on the solution showing a square with an intersecting diagonals as shown below. ( Image in print only)
The creative problem solver would realize that if the crossed diagonals were rotated simultaneously within the square, that rotation would produce an infinite number of solutions. Thus, the creative problem solver would challenge whether limiting rules actually exist. By eliminating the limitations imposed by non-existent rules, the creative problem solver would expand the scope of solutions infinitely.
Lawyers are widely perceived as being finders and interpreters of rules governing human conduct. Because they generally view the work through a virtual mesh of rules, they routinely tend to see rules that do not in fact exist. Their professional duty of care owed to clients intensifies this condition. They are inclined, more than the average person, to interpret the existence of non-existent rules. While this practice of assuming the existence of rules in the interest of cautious rendering of legal advice to clients may have certain benefits, it is a handicap to those lawyers who carry over the practice in problem-solving situations generally. On many occasions lawyers erroneously assume certain "rules" limit the quantity and quality of possible solutions to a problem. These assumed "rules," if properly challenged, can be exposed as the artificial limitations they truly are, and problem-solving opportunities can thereby be greatly enhanced. The following anecdote is intended to illustrate the importance of challenging assumptions in problem solving.
There is a story told about a very famous, highly respected law practitioner who was presenting a seminar on evidence to fellow lawyers in Chicago, Illinois. At the beginning of his presentation, without saying a word, his right hand nonchalantly removed from his trouser pocket what appeared to be a book of matches. Somewhat dramatically, he opened the matchbook, tore off a stick like object, and held it high above his head, and asked the audience, "What is this?" Several seminar attendees in the back of the room responded in unison. "A match!" they shouted self-assuredly. Then the speaker asked this question: "Is it a match if it doesn’t have a head?" A hush fell across the room. Then the speaker handed the object he had held above his head to a lady sitin in the front row, and he asked her, "What is it?" Haltingly and with some trepidation, she said, "It appears to be a match with its head removed." "Well, is it a match?" the speaker asked. "I don’t think so," responded the lady. Next, the speaker handed the lady the book of matches and asked her to tear off one of the stick-like objects inside and to examine it carefully. She did so. The speaker then asked her, "What is it?" After scrutinizing the object for some time, the lady answered, "It’‘s a match!" The speaker asked, "How could you prove that?"" By striking it against the roughened surface of the matchbook cover and seeing it ignite," she said. The speaker instructed her to do so, and when she tried the head of the stick-like object crumbled. It would not ignite. The speaker than asked the lady, "Is it a match?" She looked puzzled for a moment and then responded, "I don’t think so." The speaker then launched into a five minute description of a "match" light years beyond the detail of an ordinary dictionary definition. He first defined the species of "match" as a nontoxic safety match. He then described the properties of the stick-like portion of the match as being composed of laminated paper products, pointing out the origin of the particular type of paper, its chemical composition, the type of laminating glue and its chemical composition, and also the particular mechanical process that is used in fabricating the paper matchstick. He then moved on to describing, with excruciating detail, the head of this particular species of match. He said that the head was composed of nontoxic phosphorus sesquisulfide, and then to the amazement of the audience, he drew the chemical structure of that igniting agent on the blackboard and then further explained in specific detail how and why the chemical on the match head ignited when it brushed across the roughened surface of the matchbook cover. The speaker made it clear that a principal characteristic of a match, at least the particular species he was describing was to ignite on a striking against the safety cover of the matchbook. When he was finished with his description, the audience was in awe. The speaker could have effectively concluded his seminar a that moment. With the skill of both an artist and a scientist, the speaker had taught the seminar attendees more about evidence in ten minutes than they had learned in the last five years of trail practice. They learned much about the differences between assumptions and facts; labels and proof. Specifically, they learned that it was indeed arguable that a "match" was not a "match," if it did not possess all the characteristics of a match. This lesson could of course extrapolated to proof of facts generally. Also, they learned hat assumptions can greatly interfere with a lawyer’s perceptions, greatly restrict his or her ability to see alternative problems, process and solution designs, and, indeed impede the search for truth.
1.de Bono, New Thinking for a New Millenium (New Millenium press 2000), at 22.
2. For other readings on "designing the problem" and related topics see: Taylor and Gretzels, Perspectives in Creativity (Aldine Publishing 1975) at 90-117; Robertson, Problem Solving (Psychology Press 2001) at 49-72; Schank, The Creative Attitude: Learning to Ask and Answer the Right Questions (Macmillan Publishing 1988) at195-311; Lewis and Greene, Thinking Better (Henry Holt & Co. 1982) at 185-211.
3. Weinstein and Morton, Stuck in a Rut: The Role of Creative Thinking in Problem Solving and Legal Education, 9 Clinical L. Rev. 835, 864 (2003). .
4. Kerper, Creative Problem Solving vs. The Case Method, a Marvelous Adventure in Which Winnie the Pooh Meets Mrs. Palsgraf, 24 Cal West L. Rev. 351, 366-67 (1997-98)
5. Weinstein and Morton, Stuck in a Rut: The Role of Creative Thinking in Problem Solving and Legal Education, 9 Clinical L. Rev. 835, 864 (2003).
6.Maslow, The Farther Reaches of Human Nature (Penguin Arkana 1971) at 82-90.
7. Weinstein and Morton, Stuck in a Rut: The Role of Creative Thinking in Problem Solving and Legal Education, 9 Clinical L. Rev. 835, 863 (2003).
8.Gardner, Frames of Mind: The Theory of Multiple Intelligences (Basic Books, Inc. 1983) at 149.
Hon. John W. Cooley has been mediating in government and private practice for almost 30 years. He is a former United States Magistrate, Assistant United States Attorney, Senior Staff Attorney for the United States Court of Appeals for the Seventh Circuit, and a litigation partner in a Chicago law firm. He is the past Chair of the Mediation Committee of the ABA Section of Dispute Resolution and is currently a member of the Council of that Section. He has served as a Special Master and as an arbitrator and mediator in a wide variety of complex, multi-million dollar commercial disputes, both domestic and international. Judge Cooley is a nationally recognized author and teacher of appellate advocacy and of alternative dispute resolution.