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The Mediation as a Symphony

November 9, 2013

Someone remarked to me the other day that mediations can take a long time.

Of course I know that mediations can take time – sometimes over several hours or even over several sessions  – because they involve explanations of the case, the development of themes, the management of emotions and a finale that results (hopefully) in the written settlement agreement.

So, while I was thinking about this pattern and the time it takes, my past as an amateur musician teased me with the idea that the mediation is like a symphony, a somewhat longer piece of orchestral music that progresses through movements or stages, with starts and stops and a range of emotions consisting of loud and soft passages, and ends with a round of applause.

And yes, symphonies can take time to complete, sometimes the entire second half of a concert.

By way of background, I remember taking wonderful courses as an undergraduate at UCLA in the Music Department – although I was not a music major.

One course that comes to mind was a survey of music through the ages.  Another focused solely on the music of Bach and another solely on the works of Beethoven.

These were the highlights of my undergraduate classes.  They were just terrific.

They taught me about various forms of musical composition among many other things.

They also taught me something about mediation, as you will see below, although I could not have known it at the time.

So, as I sit in a mediation with two or more sides, now I feel as if I am the conductor of an orchestra.

I know that a piece will play out, hopefully harmoniously (although potentially sometimes with discord), and can result in the “Bravo!” of settlement.

One form of musical composition of which I am aware is the sonata form.  Often, but not always, the sonata form is used in at least one movement of a symphony, usually the first movement.

The sonata form includes the following sections: Introduction, Exposition, Development, Recapitulation, and the Coda. See, http://en.wikipedia.org/wiki/Sonata_form .

To me the sonata form most closely resembles the mediation:

As mediator, I give the introduction.  Then each side, in the exposition section, gives an explanation of its legal position, its version of the dispute.  In the development section, we discuss the underlying themes, emotions, needs and interests, the parties negotiate and they make concessions and begin to accommodate one another.  Often thereafter (this is the recapitulation), people return to their legal positions because they feel they’ve gone far enough.  But then, in the coda section, with the help of the mediator and counsel, the parties find an harmonious outcome, we put all of it together, write it up, and congratulate one another on ending the dispute.  Bravo!

Sometimes, on the other hand, I see the rondo form in mediation.

Essentially, according to Wikipedia, the rondo involves “a principal theme (sometimes called the ‘refrain’) [which] alternates with one or more contrasting themes, generally called ‘episodes,’ but also occasionally referred to as ‘digressions’ or ‘couplets.’”  See, http://en.wikipedia.org/wiki/Rondo.

Thus, the rondo form is more like theme and variations.  One gets the same thing over and over again, with something in between, and there is no development section.

I attribute the rondo form to mediations where the positions of the parties are so hardened that little compromise takes place, and unless one concedes his theme to the other, the mediation session may not (yet) yield a settlement agreement.

Fortunately, the rondo can be rescued by the sonata rondo form, a combination where we do get repetition, but also we get development, usually in the coda, and thus, the potential for a successful resolution and a settlement agreement.

As the sonata form is used in a symphony in one movement, so is the rondo or sometimes the sonata rondo used in another.

I realize this is a stretch, comparing mediation to a symphony,  but sometimes the parties and counsel do harmonize and make beautiful music together.

It just takes time.

***
David I. Karp is a full time mediator of real estate and business disputes in Southern California who owns a souvenir baton from the Los Angeles Philharmonic. His website is at http://karpmediation.com.  He apologizes for any ads affixed to this post by wordpress.com; they are not his.

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