Creative Problem-Solving in Law

Creative Problem-Solving is a discipline that defines problems so as to permit the broadest array of solutions. CPS seeks many points of view and examines problems for their relational impacts at all levels: individual, institutional, societal, and international. CPS seeks to develop solution systems based upon what is learned about a problem, rather than what is habitually done. It is a caring approach that seeks transformative solutions to redefine problems, expand resources and facilitate enhanced relationships between the parties. (based upon a definition of Creative Problem Solving by Janeen Kerper of CWSL.)

California Western College of Law McGill Center for Creative Problem Solving is the flagship for this approach. In 2000, they hosted a wonderful conference on the topic. I recently found that the proceedings are available on Lexis-Nexis:

https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDi...

While many of the ideas have developed over the last ten years, it is still a good introduction to the many Creative Problem-Solving approaches.

The Center for Creative Problem Solving develops curricula, research, and projects to educate students and lawyers in methods for preventing problems, where possible, and for creatively solving those problems that do exist. The Center focuses both on using the traditional analytical process more creatively and on using nontraditional problem solving processes drawn from business, psychology, economics, neuroscience, sociology, and indigenous communities (among others).

Thomas Barton, a professor at CPS at CWSL, recommends creative legal problem solving not only for the results it produces for the client, but also for the effect it has on the lawyer involved: lawyers enjoy doing creative work and resolving dilemmas. Barton says that there are two major steps involved: expanding the context of the problem so that all the dimensions are exposed and building a larger repertoire for resolution, which includes being open to whatever constitutes “success” in the client’s mind.

The American Bar Association recognizes individuals and organizations that use their problem-solving skills to forge creative solutions with the Lawyer as Problem-Solver Award. According to its website:

****Recipients will be acknowledged for their use or promotion of collaboration, negotiation, mediation, counseling, decision-making, and problem-solving skills to help parties resolve a problem in a creative and novel way.

The lawyer as problem solver, in both orientation and skills, demonstrates:
**** the ability to analyze situations or to consider expert analysis from a multidisciplinary perspective, taking into account the broad array of client or party interests and the multitude of factors and circumstances that impact the “problem” presented;
**** the ability to translate positions into interests;
**** the ability to generate and assess—and to help the client or parties involved generate and assess—both conventional and novel options to address the problem; and
**** the ability to build consensus around an option which best addresses the goals and interests of a client or the involved participants.