What would commercial mediation in Nashville be without reference to music?  When I’m not helping guide clients through mediation of commercial disputes with McDonald Dispute Resolution, I am a regular at the Bluebird Cafe.  Yes, I’m almost always in the minority as a Nashvillian and not a tourist.  But the lyrics often provide inspiration for mediation. Think about it – who knows more about breaking impasse, difficult negotiation, and options for resolution than a country songwriter?

But let’s start at the beginning and look at commercial mediation and any dispute resolution as dance.

I recently heard a judge describe litigation as a cross between ballet and burlesque, sometimes with a bit of extreme martial arts.  So true!  I’d go further and say that litigation often evolves into bare knuckle fighting.  If litigation is ballet/burlesque/bare knuckle fighting, what is mediation? It is a waltz, my friends.  Even the word evokes a calmer, more participatory and approachable way to resolve a dispute.

The precision of ballet is beautiful and awe-inspiring – tutus and pointe shoes for dancers who perform with technical precision supported by obvious discipline to their craft.  Ballet is a highly stylized and complex performance that focuses on the solo dancer in concert with fellow dancers who showcase the art.  It is theater generally directed to an elite and cultural audience.  Litigation with the precision of ballet means perfect Bluebook form, compliance with all the nuances of local rules, beautiful formatting.  All backed by well-considered legal strategy so that the right motion gets filed at the right time with all the right evidentiary support. Judges and other lawyers admire the perfection of litigation ballet, but litigants – as the audience – may be bored or confused or left-out.

Think Swan Lake.  Perfect choreography to highlight and contrast the grace of Odetta with the deception of Odile and the ensuing drama. The dancing swans remind me of associates who work through the night to compile faultless motion papers.  Then the ballroom competition for the affection of Prince Siegfried is oral argument where lawyers compete for the judge’s attention.  Everything erupts when the prince mistakes Odile for Odette, a big mistake followed by chaos, but still with perfect choreography.  The audience -the litigant - is enthralled, but the dancers are focused on their performance, not the audience reaction.

Like ballet, burlesque is performance theater, but the similarities end there. It is playful parody and comedy that evokes laughter and teases the audience.  The word burlesque comes from an Italian word meaning a dramatic or musical act intended to cause laughter.  That is the focus – to prompt audience response with the result that the audience drives the performance. In other words, the audience gets much more attention in burlesque than ballet. And often the audience is not just the litigant whose claims are at issue, but the public and the media.  No boredom here, but burlesque litigation can distract from the goal of resolving conflicts.

Then there is bare-knuckle fighting.  It’s making a comeback, and I’m not sure that is good news*.  Bare-knuckle fighting is combat between two participants who fight without padded gloves.  That means that a good punch can hurt the hitter just as much as the recipient of the hit.  Add to this that bare-knuckle fighting has no limit on rounds; rounds continue even after multiple knockdowns so long as the fighters can stand.  The longest such fight ran seventy-five rounds!  Audiences might find this entertaining for a while, especially if their fighter is winning, but I assume (hope) that any entertainment value diminishes pretty quickly.

I’ll ask the question, but I know the answer.  Have you been in litigation that seemed like bare-knuckle fighting?  Endless bloody rounds with bloody injuries for all.  And a result that hardly seems like a victory for anyone.

Those three pretty aptly describe the basic litigation techniques:   the technically precise ballet performance, the humorous interaction between dancers and the audience in burlesque, and the raw combat of bare-knuckle fighting.  We could all think of multiple examples of litigation using any of these dancing metaphors.  If we are honest, we have all danced ballet and burlesque and thrown a few bare-knuckle punches in our careers.

So where does mediation fit?  It’s too participatory and inclusive to be ballet, too pragmatic and focused to be burlesque, and much less dangerous than bare-knuckle fighting.  That makes it a waltz.  A social dance that aims for connection and enjoyment and harmony.  The waltz is intimate and versatile with dancers looking at each other as they glide gracefully around the room.  We may not win prizes for our waltzing skills, but it is a dance that is so intuitive that we can wing it pretty effectively.  And perhaps best of all, the waltz ends without sore toes or bloody knuckles.

That is what mediation is or at least should be.  A waltz.

*  I have a family connection to the longest bare knuckle prize fight in American history.  That fight took place between John L. Sullivan and Jake Kilrain in south Mississippi in 1889.   My great grandfather was the sheriff who did not stop the fight even though courts and governors had directed him to do so. Rumor has it that he put a bandana over his face and returned to watch the fight.   It is an amazing story that was on the front page of the New York Times for days. Read about it here:  https://mississippiencyclopedia.org/entries/sullivan-kilrain-fight/ or here:  https://christopherklein.com/books/the-life-and-times-of-john-l-sullivan-americas-first-sports-hero/