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Creativity in Court-Connected Mediation: Myth or Reality?

Adrian, Lin and Mykland, Solfrid. Negotiation Journal, Oct. 14, 2001

This study of 129 court-related civil mediations in Denmark and Norway has found that the majority of mediated agreements were creative. The research compared the claims filed with the court to the agreements reached in mediation. The researchers defined a creative agreement as one that contained elements beyond those identified in the court filing. They then split the agreements according to number of creative terms. The case types involved in the study were diverse — from contract disputes to probate and divorce cases. The researchers found that 52% of the mediations sampled had two or more creative terms, and 26% had more than five. The likelihood of creative terms increased as the amount in dispute increased. Further, creative terms were more likely in probate and divorce cases, and when at least one party was an individual. They were also more likely when the mediation lasted more than three hours. This finding is supported by negotiation research, which has found that people who are pressed for time process information less effectively, rely on stereotypes to understand the other party, and reach distributive agreements rather than integrative ones.

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