Mind Mapping in Legal Mediation
Following a successful Brunch Club in Atlanta, one of our attendees, Rich, got in touch to tell us more about his uses of mind mapping. Have a read about how he uses mind mapping in legal mediation! (All mind maps in this article are available for download from Biggerplate).
Richard W. Vitaris is an administrative judge with the U.S. Merit Systems Protection Board, a Federal agency which adjudicates certain employment law disputes between the U.S. Government and its civilian workforce. As an additional duty, he also mediates select cases pending before other judges in his agency.
Judge Vitaris has been trained in dispute resolution at the Harvard Program on Negotiation, the National Judicial College, and the Justice Center of Atlanta. He is an avid mind mapper and member of the Biggerplate Business Club. He attended Biggerplate Unplugged 2016 in New York.
Mind Mapping and Mediation
Mediators attempting to resolve disputes and facilitators seeking to help a group achieve consensus know that effective reality testing is critical to success. A court case cannot be settled by mediation if both parties are convinced that they will win and their opponent will lose. Similarly, a group cannot achieve consensus without a means for each participant to weigh the pros and cons of alternative viewpoints.
A mind map can sometimes be the very tool needed to reality test a person's preconceived or incorrect assumptions by allowing the individual to "see" the relevant considerations and the relationships among them.
Below is an example from my own work. I mediate U.S. Federal sector employment disputes, most commonly cases where a fired civil service employee appeals to obtain reinstatement, back pay, and other damages. However, as can be readily seen, the mind map can easily be adapted to any type of mediation or group facilitation scenario.
This mind map shows the fired employee the pros and cons of what will happen if he wins his case, loses his case, or accepts one of two different settlement offers which his former employer, the U.S. Dept. of Veterans Affairs (VA) has put on the table. Since mediations are confidential, my example is fictitious.
If the mediator has mind mapping software, the mind map can be built as the discussion progresses, in much the same way as how mind mapping is used for brainstorming. Participants are quick to spot the upside or "pros" of any possible outcome, but the key to success in mediation is making sure that every possible downside or con is also fully and fairly identified. The mediator, through tactful probing, should get the parties to acknowledge the "con" and then put it in the mind map. For example, the mediator might ask, "what do you think might happen if you lose this case?" and then add the answer to the map.
Because most mediation participants are not familiar with mind maps and software may not be readily available, I frequently provide the parties with a blank template, like this:
This template only has room for two settlement options. That is usually enough for employment law cases where one option will typically involve the employee returning to work while the other option does not. Other times, there may only be one settlement option. If there are three or more settlement offers, additional branches can be drawn by hand on a blank piece of paper.
While I always prefer to have mind mapping software available or, failing that, a tablet (iThoughts for the iPad is easy to use and inexpensive), use of a handwritten mind mapping template is especially powerful where the mediator has the litigants write down the pros and cons in their own hand. As in my example, actually writing down "long term unemployment," and "marital stress," as an outcome of losing the case, may help a litigant make a fully informed decision whether a particular settlement is in his best interest.
The ultimate goal is to inform decision making, not to frighten or bully a party into a particular resolution. That's why all the pros and cons need to be reflected on the mind map. If the mind map is complete and fair, it can help litigants avoid the "blind spots" that often doom settlement.
Mind Mapping in Group Facilitation
The use of mind mapping in group facilitation is similar to using mind maps for brainstorming. The critical difference is that brainstorming simply tries to identify all possible ideas and options whether good or bad, whether ambitious or modest. Deciding among the ideas and options will typically be made later. In group facilitation on the other hand, the facilitator's goal is to bring the group to consensus. Thus, the pros and cons of various ideas and options must be carefully identified and weighed.
Reality testing is vital to this process. While the facilitator begins using the same mind mapping technique followed in brainstorming, the facilitator must be certain to capture all of the pros and cons of every idea and option. In effect, the facilitator will encourage the group to perform a mini SWOT ("Strengths, Weaknesses, Opportunities, & Threats") analysis for each of them with the “pros” being the strengths and opportunities, and the “cons,” the weaknesses and threats. If that is not effectively done, group members will tend to cling to their original ideas and positions will become entrenched. The facilitator must strongly encourage all group members to approach every idea and option with an open mind, which includes keeping your eyes wide open to the weaknesses and threats, not merely to the strengths and opportunities. There is no better tool for accomplishments this than a mind map.
There are a great many examples of brainstorming and SWOT mind maps in the Biggerplate library. The model you choose doesn't matter. The important point is that the map must 1) capture all of the group’s ideas and options and 2) fairly identify all of the pros and cons of each of the ideas and options.
There are few things harder in life than maintaining objectivity. Humans tend to hear what they want to hear and see what they want to see. An effective mediator or group facilitator uses discussion to make people hear essential realities. The mind map lets them see those realities visually which, as all mind mapping enthusiasts know, makes all the difference.
Disclaimer: The views expressed in the post are solely those of the author and do not express the position of the US Merit Systems Protection Board.
All mind maps in this article are available for download from Biggerplate.