Part II: Improvisation

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 II will focus on improvisation in mediation in particular (1) learning the form and (2) being ready to perform. See Part I for a discussion on the benefits of using intuition as a mediator in particular (1) listening for the context and (2) acting intuitively. Read Part I »


Improvisation is essentially intuition that is acted upon. Professional jazz musicians must constantly work to keep their “chops”[1] up in order to act on their intuition. Colter Frazier, a well-known improvisational saxophonist in Santa Barbara, describes his approach to practicing.

“I divide up my practice time and list the different things I need to work on. I practice scales, tone, technique, rhythm and patterns.

“So even though you didn’t play songs very often, practicing these basics made you a better performer?

“Right. I never play what I practice, so some would say, ‘What’s the point?’ Beyond keeping up your tone-control, it is imperative to keep up your technical ability so that your fingers will be able to execute what your brain is thinking smoothly. Although I don’t practice the ideas I develop during practice, I work to be able to execute an idea, no matter what the idea is. Then, when an idea presents itself during a performance, my brain and fingers work together to execute that idea seamlessly, because they are used to the process of transferring ideas into the music. It’s the act of getting out what is in your brain, at that moment.[2]

I believe mediators can learn a tremendous amount from this guidance. This sort of practice allows the improviser to “prepare for every possible context and situation,”[3] because they are not practicing for a set of events. Instead, they are practicing being able to respond to any event. Let me use a recent mediation to illustrate the point. I could see negotiations were coming to a close, but the Plaintiff party was holding out for a little bit more. My intuition told me that using the “net to client” technique would close the deal. Luckily, I had developed the technique and knew how to execute it; thus, I was able to use it to show the plaintiff why settlement was a good idea when my intuition suggested it would gain traction.

Throughout my studies at the Straus Institute at Pepperdine University, I have found role-plays useful to this end. However, I believe there is more that a mediator can do to develop their ability to connect intuition and action. The following are preliminary ideas.

1. Learn the Form
In addition to learning technique, a jazz musician must understand the form of jazz before he or she is ready to perform it. Frazier noted that a common occurrence with beginners is that they tend to get lost, or not know where they are going when improvising. Jazz, like all other music, has a beginning, middle and end. However, within that structure are elements that make it unique from other musical genres. This is largely because of the chord progressions used,[4] the rhythm and accents,[5] and the instrumentation. Before an aspiring musician is ready to perform, or improvise with others, he or she will need to understand these distinctions. If they do not understand, they will tend to get lost.

Similarly, a mediator needs to understand the basic form of mediation, and know the basic language of mediation. This form is generally taught as convening, opening, communicating, negotiating, and closing. This is distinct from other dispute resolution forms such as negotiation, arbitration, or litigation, and it is important that the mediator understand the form.

When a jazz musician gets lost, the other members can remind them where they are in the song. However, if a mediator gets lost, there may be no one to rescue him or her. I recently represented a party in a mediation where the mediator spent the entire time in the “communicating” stage, and by the time the parties moved to “negotiating,” everyone was tired (including the mediator) and the case did not settle. Perhaps if this mediator had recognized when it was time to move through the form, the case could have settled.

2. Be “Ready”
Oscar Peterson noted that in order to convey serenity in a performance, “the first people who had to be musically serene were ourselves … before it could possibly happen for the audience.”[6] Similarly, a mediator must be ready to perform from the moment the mediation begins. In addition to the preparations discussed above, this requires emotional, psychological, and physical preparation. This preparation enables the mediator to focus on the performance, and not on them. As a simple example, one musician friend of mine described how he would eat very carefully and selectively before a performance—just enough to sustain his energy and calm his nerves, but not so much as to make him groggy. These preparations will be different for everyone, and what is important is being aware of one’s individual needs and taking the time to meet those needs.


“In any art form we seek the experience of going beyond what we already know.”[7] Mediation clearly shares many elements with improvisation and the arts, and many mediators I have met have a desire to progress beyond what they know. This is how mediators, like any other artist, advance in their craft. Once a musician’s mind learns to hear music, he or she is able to apply new ideas. Once a mediator’s mind becomes attuned to the basic tenets of what mediation is and how improvisation plays a role in it, inspiration can be drawn from other disciplines.[8] Inspiration for the art of mediation is all around us; all we have to do is learn how to recognize it.

[1] “Chops” means more than just the physical ability to play the instrument. It also refers to the mental capacity of the musician to improvise. If a musician takes a break from improvising, or only improvises over basic chord progressions, he or she will lose her ability to improvise in more challenging musical contexts. Thus, keeping up one’s chops is both a physical and mental task.
[2] Interview with Colter Frazier.
[3] Paul Newton, Leadership Lessons from Jazz Improvisation, 7 Int’l Journal of Leadership in Education 83, 86 (2004).
[4] At a very basic level, jazz follows a ii-V-I with the sevenths of the chords instead of the IV-V-I found in rock music.
[5] Jazz is syncopated, and the accent falls on the second and fourth beat of a four-beat measure instead of the first and third as in rock or popular Western music.
[6] John W. Cooley, Mediation, Improvisation, and all that Jazz, 2007 J. Disp. Resol. 325, 340.
[7] Id. at 384.
[8] Musicians do this as well. An extreme example is provided by the album “Leng Tch’e,” by the band Naked City. It is a concept album designed to be a musical representation of torture. It is grueling to listen to and deeply disturbing. It is shocking how well it resembles pain and how forceful music can be on one’s emotional state.

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