Mediation Music

Mediation is often likened to a dance, but it is much more complex, much like a symphony and the mediator is the conductor who helps it develops its own distinctive rhythms. The participants in a mediation are, like members of an orchestra, a disparate group who play different melodies or just interject some occasional notes. They have a different score both to follow and to settle. The mediator must be able to integrate all the melodies foster the pace that will achieve a settlement. In keeping with the musical analogy, the music can change along the way.

The music opens with an introduction: usually this is relatively quick tempo. Then comes the exposition—this can be slow, almost painfully so. The parties need time to state their positions and how they do so sets the tempo and tone for the next movement. That movement is likely to be somewhat staccato—a quick set of back and forth verbal forays. It is necessary to recapitulate the themes and assure that everyone is hearing the same tune. Dissonance is a common feature of this section. Once again a slower pace can be felt as people begin to hear the phrases more clearly. When this plays itself to the right spot, there is a crescendo, once again quicker and often becoming quicker still with each exchange, and recapitulation reinforces the direction.

Sometimes the music is so jarring that people want to get up and leave the concert. They may have to be ushered back to their seats after a brief intermission.

How does it end? Suddenly there it is, THE MOMENT. The mediator must recognize it, seize it and sell it to the edgy audience. This is it: the recognition that you are never going to do better than what there is right now. You can have the security of settlement and closure or the uncertainty and the costs, both literal and figurative of ending the music on a sour note only to have to attend future concerts, whose content will be more like fingernails on a blackboard than the soothing final notes of a symphony. If the music fades without resolution, there can still be opportunity, for another recapitulation and variations on the theme: the mediator has to know if that is a true ending or another opening note. The final movement ends with some harmony, preceded by dissonance. No baton is necessary for this conductor, but the skills required to wrestle sixty musicians into harmonious compliance are strikingly similar to those of a mediator faced with multiple agendas and the need to create an atmosphere where point and counterpoint combine into a theme all can follow.

Thinking about a mediation in these terms might help a practitioner with issues of pacing, timing and collaboration.

                       

Dena Schechter

Dena Schechter became a mediator through the Straus Institute for Dispute Resolution at Pepperdine University’s School of Law. She serves on the Pro Bono Panel and Party Pay panels of the Los Angeles Superior Court Alternative Dispute Resolution Services, mediating litigated cases as well as maintaining a private practice. Mrs.… MORE >