Part I: Intuition

Nothing in this world is stagnant. Even the stillest morning air is full of billions of particles frantically beating into each other as the sun warms the earth. The calmest seas still have current, and water flows freely beneath the surface. Just like these examples from the physical world, the emotional world is never still. If we watch ourselves carefully, we will see that like the physical world, our emotions are continually coming and going. True, some people appear more stable than others, but this simply reflects the rate at which they change. Everyone is always changing, constantly coming into existence and passing from it at the same time. As put by jazz musician Art Farmer, “You’re always on your way somewhere.”

It follows that our relationships are also dynamic. A relationship by definition requires interaction, and as demonstrated above, each side to that interaction is constantly changing. This makes it clear that the relationships we have today are not the relationships we will have tomorrow, although they will be with the same people. What will be different will be the particularities of the relationship and the specifics of the interaction the next time we meet that person.

It is in this world of constant fluctuation that a mediator works. Many people are uncomfortable with this idea that nothing is ever the same. However, this fact is what allows the flexibility that empowers jazz soloists to create new material at every turn; this is the same flexibility that enables mediators to go beyond what the parties expect a possible settlement to be. Every new moment carries with it new possibilities for an improviser, whether the medium is music, theater, or mediation. However, to take advantage of these opportunities the improviser must be attuned to the interaction of the other parties as the situation unfolds. For a mediator, this requires being attentive to the current facts, flexible in the response, and adaptive to meet the needs of the parties as those needs present themselves.

This two-part article discuss two important aspects of the application of jazz to mediation: listening to one’s intuition and improvising as the facts unfold. Part I of this article will focus on listening to one’s intuition in particular (1) listening for the context and (2) acting intuitively. Part II will focus on improvisation in particular (1) learning the form and (2) being ready to perform.


Acting on intuition, whether in music or mediation, requires overcoming one’s fear of failure and of rejection. This fear unfortunately prevents many talented people from ever becoming experts, either as musicians or mediators, because they are unable to overcome that fear and take risks. Rehearsing with others is essential to developing improvisation skills, because there is no interaction without another person. Further, “no two mediators work the same way, and no two cases are the same.” This section applies the framework of improvisation used by jazz musicians to the context of mediation.

1. Listen for Context
The most essential skill of a jazz musician is the ability to listen—if you are not listening to what the other players are doing, you cannot hope to interact with them in any meaningful way. Great jazz players listen to the whole group—they listen not just to hear the melody or the chords, but also to understand the song as a whole in a way that they can interact with the melody, the chords, and the other members all simultaneously.

A mediator can listen to conflict in a similar way. This requires more than simply listening to the words the disputing parties use, but listening to what they are telling you through body language, eye contact, tone of voice, etcetera about their interpretation of the conflict and their perceptions of possible solutions. Humans communicate with much more than words, and a mediator that can “hear” more than the words spoken will have a decided advantage. For example, in a recent telephone conversation I had with opposing counsel, I simply did not interrupt him, did not argue with him, and encouraged him to continue talking to me by asking open-ended questions and being silent while giving him time to answer. As a result, he disclosed a lot of information about himself, his client, and their positions and interests that he probably would not have disclosed if I had just asked directly.

2. Act Intuitively
As the jazz musician develops an understanding of the song, he begins to see openings. He must be ready to step into these openings and apply the techniques he has learned by practicing scales and patterns when intuition tells him it is time. Likewise, it has been suggested that a mediator is successful when “[he or she can] perceive what will be helpful and … do it.” Paul Newton, a jazz trumpet player, author, and professor, defines his approach to this as having three steps. First, he plays something safe. Then, on the next round he steps toward the edges a little more. Finally, in his third round, he takes the most chances and ventures the furthest from the melody. By venturing away from what is basic and comfortable, a mediator can build his or her skill set just as the musician does. Once a risk is taken, if that risk pays off, it is more likely to be used again. Once a particular risk has worked a few times, it becomes part of one’s “toolbox” and its effects become predictable making it no longer a “risk” but a basic tool. Without taking risks, a mediator’s box of tricks will be slow to expand. The key, it seems, is taking risks that will not “ruin the song” if they flop.

Read Part II »

John W. Cooley, Mediation, Improvisation, and all that Jazz, 2007
J. Disp. Resol. 325, 383 (citing Art Farmer).
If there is only one, there is nothing to “relate” to, and there can be no relation-ship.
Cooley, supra note 1, at 340.
Id. (citing Jeffrey Krivis, Stand Up Comedy, Daily Journal (March 2002)).
Howard Bellman, Improvisation, Mediation, and all that Jazz, 2006 Negotiation Journal 325, 329.
This point was emphasized in my conversation with Colter Frazier, a prominent jazz musician and acclaimed improvisational musician. In addition, others have said “… in order to have anything worthwhile come to mind, you have to listen and listen and listen.” Paul Newton, Leadership Lessons from Jazz Improvisation, 7 Int’l Journal of Leadership in Education 83, 86 (2004) (quoting Terril, 2000).
Bellman, supra note 5, at 327.
Newton, supra note 6, at 86.

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