Mediator’s Corner

Mediation and all that Jazz


Sometimes this mediation “band” plays smoother, rhythmic jazz in spite of itself in the form of direct, productive communications.  Other times, however, the band plays jarring, atonal sounds emanating from the same underlying conflicts of personalities and positions that led to the dispute in the first place.

To stretch this analogy a bit further, like a jazz band leader, a mediator needs to bring the critical faculty of empathy for the players in the band, while at the same time dispassionately evaluating their positions.  As in music, in mediation a good sense of timing can also make all the difference in outcome.  And, just as a good band leader needs to allow a soloist his or her riff moments, a good mediator needs to let the parties and their counsel have their say even if this brings conflict into the room whether in joint session or in caucus.  With respectful, actual listening, usually the “soloist” can be brought back into a semblance of harmony at least with the mediation process if not more.  And maintaining a good sense of humor is always priceless for band leaders and mediators.

All this requires persistence in the mediator, sometimes gentle, sometimes less so.  After all, even if it’s a jazz band you’re leading, the musicians picked you to get them to play together.

* Stephen Schrey, a Mediation Society member since 2011, is a partner in the San Francisco office of Nixon Peabody, LLP, where he maintains an ADR practice focusing on business, real estate, financial services and insurance disputes.

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