Mind Mapping in Alternative Dispute Resolution

Richard W. Vitaris is a retired 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 mediated select cases pending before other judges in his agency. Since retirement, Rich is a registered neutral in the State of Georgia and he writes and teaches on Federal employment law topics including alternative dispute resolution.

Rich was 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 who has presented webinars and written blog posts on both mind mapping for the legal profession and mind mapping in alternative dispute resolution.

What is Mind Mapping?

Mind mapping is a tool that lets you capture, develop, and share ideas visually. It is useful for a myriad of tasks such as brainstorming, note taking, project planning, and more. Mind mapping can be done either with pen and paper or with software. Basic mind mapping apps can be found for free while powerful mind mapping programs capable of project management, and the creation of visually appealing maps for use in training can cost over $300. The maps themselves can run from the very simple to highly sophisticated. Whatever software is used, mind mapping is versatile and allows the user to create maps which best fit the circumstances and the user's stylistic preferences as to how the maps should look. 

Mind mapping can be particularly useful to mediators and other ADR professionals. Among other things: (1) it helps the mediator prepare for the mediation; (2) it allows the mediator to capture the options raised by each party and quickly analyze them; (3) it helps the mediator engage in reality testing with the parties; (4) it allows the parties to effectively weigh the pros and cons of settlement proposals; (5) if all goes well, it facilitates the drafting of a settlement agreement; and (6) it is highly effective in ADR training.

Because an ADR professional will use mind mapping in the office, at home, at mediations, and while traveling, I recommend a mind mapping program which is both web-based and available with an iOS and/or Android app. That allows access on any computer with internet access as well as on a tablet or, in a pinch, on a smartphone. There are three full-featured products which meet that criteria: Ayoa, MindMeister, and XMind. Plus these products either offer a free version with fewer features, or a free trial. The maps in this article contains samples of all three.

Use of mind mapping to prepare for a mediation

While many mediators know little or nothing about a case prior to the mediation, others prepare extensively. The mind map below is a template for that preparation. Among other things, it lets the mediator capture some essential key facts about the parties and the nature of the case; notes on a party's previously identified positions; a party's likely BATNA or "Best Alternative to a Negotiated Agreement;" the previously identified positions of the parties; and the likely ZOPA or "Zone of Potential Agreement." Modern mind mapping software allows for creation of a virtually unlimited canvas so an enormous amount of information can be captured. In addition, documents and hyperlinks can be easily attached to a mind map which can be opened with a single click. A completed mind map can have all of its branches fully expanded to let you see everything that can fit on a screen (or scroll to see even more) or branches can be easily collapsed to allow a user to focus on a single topic or avoid clutter. This allows a mediator to have everything she needs to know available in one easily accessible place.

The thing to remember is that a template—whether mine or somebody else's—is only a suggested approach. Feel free to use it, modify it, or develop a template of your own which better satisfies your needs. Mind mapping offers near unlimited flexibility.

Using mind maps at the mediation

I prepare the type of preparatory mind map described above for myself. I usually don't share it with the parties except in cases where each side filed a mediation brief and the map's content is based upon briefs which were previously served on the other side. Instead, I will create a new mind map for each party based on their input during caucuses. Of course, I already have a good idea of what that new map will look like based upon my own preparation so it is easy and quick to prepare. Like what the parties say during a caucus, each side's mind map is subject to confidentiality rules and should not be shared with the other side unless a party has consented to it.

The reason mind mapping is particularly useful for mediation and other types of ADR is because it helps parties think critically and rationally in what is often an emotionally charged and nerve wracking situation. Some people understand ideas better when they see them illustrated visually. For them, a "picture"—the mind map—really is worth a thousand words. In addition, involving the parties in the preparation of the mind map can focus their thinking in ways which might not be possible solely by discussion.

Mediators attempting to resolve disputes or 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 absolutely convinced that they will win and their opponent will lose as neither will be willing to make a significant compromise. Why should they?

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 mediated 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 a 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. Points are added to the map as they are mentioned and can be easily moved around to organize the information. All ideas should be captured to start with to give parties a sense of “ownership” over the mind map and its contents. 

Mediation 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 "cons" and then put them into the mind map. For example, the mediator might ask, "what do you think might happen if you lose this case?" and then add the answers to the map.

When, for whatever reason, I am unable to use mind mapping software during the mediation or where a particular party is having trouble coming to grips with the reality of his situation, I use a blank paper template that I bring with me that looks like this:

This template only has room for two settlement options. That is usually enough for my 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. Again, a mediator should prepare their own template tailored to the particular case or the nature of their own mediation practice.

Use of a handwritten mind mapping template can be especially powerful if 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. For some, writing the cons out in their own hand makes that potential outcome far more real than just hearing it at the mediation.

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

Mind mapping is also highly effect in group facilitation. The process begins with brainstorming, one of the most common uses of mind mapping. The facilitator had the group identify all possible ideas and options whether good or bad, whether ambitious or modest. 

While most facilitators would just list these points on a flip chart or whiteboard, the mind mapping facilitator is able to organize them which allows the group to weigh them and help bring the group to consensus. Mind maps allow the group to identify the pros and cons of the various ideas and evaluate them.

Reality testing is also vital to this process. While the facilitator begins using the mind map for  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 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. This is an important key to success because, if it is not done well, 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 their eyes open to the weaknesses and threats, not merely to the strengths and opportunities. There is no better tool for getting this doe done than a mind map.

Here is my own group facilitation template:

Presentations mind mapping for ADR training

Quality mind mapping software is a wonderful presentation tool if for no other reason than that most audiences are sick and tired of  PowerPoint presentations and love seeing something different. The best way to present with mind mapping is to have a Master Map containing the entire presentation but with all of the branches collapsed. The presenter discusses one branch at a time, moving clockwise, expanding and re-collapsing branches and sub-branches as she goes along. 

Mind maps are also great for book summaries like the one below, on the famed "Getting to Yes," essential reading for all ADR professionals.

Conclusion 

All ADR involves conversation.  ADR training emphasizes the importance of effective listening. Mediators reframe what the parties say primarily to make sure that a point has been heard by both sides. A lot of people, however, are visual learners in the mind map allows the ADR professionals to "show not tell."

Mind maps help parties overcome what for some is a major barrier to settlement — an unreasonable belief in the strength of their case.

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 as well which for some makes all the difference.