The courtroom is in many ways a theatre, and the most successful of trial attorneys have something of the actor in them. Presumably, human suffering and corporate intrigue, with all the attendant drama laid bare for all to see, have made lawyers, judges, and jurors the centerpieces of many movies and television shows. Perhaps trials are conducted on a stage, one where middling lawyers chew the scenery and great lawyers wage spoken battles comparable to the Lincoln-Douglas debates. If that is true, then I suggest to you that mediation is also performed on a stage. Not the wide-open stage of a theatre or courtroom, mind you, but rather in a more quiet, private and intimate setting of a jazz performance.
Bear in mind that jazz at its purest is musical improvisation. Is there a structure? Yes, but nothing like the restraints placed on a play or a trial. Jazz compositions usually look pretty simple on paper. A typical jazz chart will have a melody line and a chord progression. After playing the melody through once or twice, the musicians will play solos in which they invent melodic improvisations over the same chord progression. Some improvisation can get pretty dissonant, but an attentive listener will hear beauty in the discord as well. Eventually, the musicians work themselves back to the melody line, as the performance comes to an end. The musicians may perform the tune again tomorrow, but it will never sound quite the same twice.
So too is it with mediation. The mediator is the nominal “bandleader” and “drummer”, in that the mediator orients the parties to the mediation concept (the underlying chord progression), and sets a rhythm at which the mediation will proceed. Counsel and/or the parties then give their opening presentations (the melody, with allowances for some variations on the theme). Once the parties move to private caucus, the improvised solo performances begin, by the parties, the lawyers, and the mediator.
What will those solos sound like? Well, it depends. They’re anything but mechanical. Just as a jazz musician will plumb the emotional depths of the music, so too will the party in caucus expose the emotions that underpin his or her positions and goals. The more harmonious one party’s solo is (i.e. how well the other party perceives the offer as meeting its needs or expectations), the more harmonious the responsive solo should be. A dissonant solo, such as a demand grossly disproportionate to the value of the claim, will likely draw a dissonant response, such as a reactive and artificially low counter-offer.
When discord becomes too much a threat to the process, the mediator must be prepared to improvise as well. Just as in jazz, timing is critical. At what point, for example, should the mediator suggest the concept of bracketed settlement proposals, engage the parties in decision tree analysis, call a meeting between the parties without their counsel, or propose any other technique that can move people closer together? Once again, the answer depends on how far the parties have strayed from the underlying chord progression, for if they are no longer even playing variations on the same composition, then perhaps the mediation should be adjourned.
If everything comes together correctly, however, the parties’ positions will become more harmonious as the mediation continues. When the solos are completed, the parties can return to the melody with which they began, changed, however, by edits made during the solos that make the tune sound even better. The parties, with their counsel, will then prepare and sign a settlement agreement. The session can close with the parties at peace, with the sizzling sound of brushes on cymbals.