Compared to other formal and informal processes, there is much bigger possibility to settle the dispute creatively in mediation process. This is exactly the main advantage of mediation. We can see recommendations or obligations to use creativity while settling the dispute in the code of ethics of mediation of several countries. At the first glance, it is obvious and everybody agrees that creativity is the most important thing in mediation however, scholarly society randomly gets interested in this matter. Working on the blogpost convinced me in this as well – it is almost impossible to find scholarly writing about this issue. But still, creativity is the main weapon for the mediator. The same need as oxygen. Oxygen has its own formula O². Does creativity have its own formula?![1]

With respect to creativity, there are more or less different approaches and it may be stated that in different spheres, it is differently perceived. Subsequently, it is uncertain what is meant in settling the dispute creatively. In order to determine role and importance of mediation, I think it is better to discuss it in different contexts. However, before that we shall discuss the main idea of creativity, grounds for all its determination.

Creativity derives from Latin word “creatio” meaning creation. Hence, we can say for sure that creative means created by the person. For this reason, it is put on the same level as artificial which is incorrect. Inspiration, emotions and possibilities of the author are main in art. But creation of creativity has a pragmatic character meaning that its creator does not avoid and puts forward the questions like:

• What shall be created?
• For whom shall it be created?
• How shall it be created?
• Why shall it be created?
• And etc.

The artist does not ask himself these questions. He/she is an idealist and creates due to his feelings or mood. Creator of creativity acts based on the goal and rational analysis and synthesis of objective circumstances. Therefore, pragmatism is the main thing required from the mediator for creativity. He/she shall objectively look at the dispute and subjectively peacefully return to the ground parties flied up in the sky.

Maltese scientist Edward de Bono stated that creativity means letting down the existing frames in order for the things to look different. The opposing parties in general understand each other’s sayings incorrectly and differently perceive the objective reality due to their positions. All this conditions that they are wearing “angry glasses”. Mediator shall at maximum try to neutralize the emotional background of the parties and show that the existing circumstances from the objective perspective.

Former Minister of Justice of Slovenia and international expert Ales Zalar in one of his publications discusses confrontation of distribution and creativity as a conflict of interests in every disputed relationship.[2] He also states that the desire for distributive acquisition means that a party wants a bigger piece of the pie than that given to him by the opposing party. Creative value, on the other hand, means the possibility for the whole pie to be increased in size, and with it the pieces belonging to the parties, but only if this is a result of the joint efforts of both parties. As we see, Ales Zalar considers creatively in mediation to increase disputed valued by the joint efforts of the parties. Reaching this goal by protecting neutrality during the facilitative mediation is very difficult for the mediator and somehow parties and their representatives shall help the mediators.

Description of creativity by Robert Branson is directly connected to the role of mediator: “Make visible the thing nobody could ever see without you”. According to Albert Einstein: “Creativity sees what everybody sees but think about what nobody has ever thought”. Indeed, this is the main goal of the mediation and mediator – show the parties what they did not and could not see before. Creativity is the main weapon for reaching this.

Therefore, we can say that creativity for mediator means outlining interests of the parties, supporting them to discuss based on objective circumstances and to reach the agreement by this way. He/she pragmatically looks at the relationship existing between the parties and does not avoid easy questions the outline real interests of the parties which is a prerequisite for informed agreement of the parties. Such agreement minimizes chances of new escalation of the conflict in future relationships. We can say that creativity is a tool to conduct successful mediation process. It is unimaginable to reach the agreement by the parties without creativity and parties will voluntarily fulfill the agreement in future.

BA Student of TSU,

Faculty of Law.

[1] <http://camp.ge/lofiversion/index.php/t1263.html> .

[2] Zalar A., Managing judicial change through mediation - part 1, ADR bulletin, volume 6, number 8, article 3, 02.01.2004, 1, 8, <http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1267&context=adr>.