This article will be published in CPR Alternatives in Spring, 2002.
Recently, I confronted the most difficult challenge of my 21 years in the practice of law. It didn’t involve courtroom theatrics or high level negotiations in a mediation room. It occurred on the stage of the Comedy Store on Sunset Boulevard. There I sweated it out during the most stressful final exam of my life, performing a 7 minute stand-up routine which crowned a semester’s worth of comedy classes.
Some might say that I’m probably the last person in the world to get up on a stage and perform to 100 strangers who actually paid to be entertained.
Candidly, I am the type who never makes the time for good old fashioned fun. Our profession has a way of compelling us to schedule marathon work routines that seem endless. So in the interest of achieving balance in my life, I forced myself to sign up for this class and schedule it in between mediation sessions. Also, as a professional, I found myself getting into a grind just like other lawyers, conducting so many mediations that cases started to become cookie-cutter. I figured a diversion completely outside the realm of what I do for a living might instill some freshness in my professional routine. The personal challenge was to get out of my comfort zone. This occurred upon arrival at the first class when I found that I was the only white collar professional in a class full of struggling actors, comedians and part-time singing waiters. Soon I discovered how difficult this venture was going to be. The process of learning the structure of jokes and how to be funny was torture. Each class forced me to hit the wall when it came to developing funny material and learning how to connect with an audience. Yet, somehow, I kept returning with the hope that some of the comments and constructive criticism from the teacher and my classmates would sink in.
Several weeks into the class I got my first laugh. It involved a joke about a family crisis in which my family had become eccentric animal activists. They had been doting on a 69¢ pet mouse that required cancer surgery, at a cost to me of $500! They used to dote on me. Now in our family food chain, I had become as low as it gets, while the pet mouse was way up on top. I always thought you were supposed to trap and exterminate mice, not domesticate them. Anyway, the class thought the premise was funny and I turned it into a routine.
At the end of 12 weeks, I found myself on center stage, with hot white lights directed at me, and complete darkness in the audience. There was no time to think, only enough time to be there for the audience, forcing myself to defeat my fears and turn them into strengths. The emotional association that takes place when connecting with an audience on the stage is the very same association that is required in a high-powered negotiation.
For example, a mediator who remains aloof during a negotiation in order to maintain his neutrality is like a car who is stuck in neutral. It just won’t go. A mediator, like the comedian, needs to jump into the fray and mix it up with the audience i.e. the disputants. This puts the mediator directly in the face of his number one fear, possible rejection by the parties. Mediators, like comedians, run the risk of being rejected each and every time they make contact with parties. That possibility prevents many talented people from ever becoming expert enough to serve as mediators.
Getting past fear has to do with where you’re placing your attention. I learned that I could either focus on feeling fear or become involved in responding to the experiences within the jokes. By becoming emotionally associated with the experiences of the material within the jokes, I was able to stop focusing on the feelings about my performance. Not surprisingly, I did forget a word or a couple of jokes, but I was able to use my struggle on stage as the raw material to get a laugh. When the curtain was finally down, the roaring applause was something I will never forget.
What does this have to do with the practice of mediation? The similarities to mediation are remarkable. To begin with, the emotional association which a comedian has with his audience is the same as a mediator has with the disputants. A comedian who ignores the temperature in the room and simply recites memorized jokes is going to bomb. A mediator who follows the same format taught in mediation school 101 and doesn’t consider where the parties are coming from is never going to achieve the type of trust and confidence necessary to connect with the parties.
Similarly, a joke, like a mediation, has a very specific structure. A joke has a set up, connector and punch line. A comedian plays many roles, not the least of which is an orchestrator of the room. He creates a target assumption, i.e. the set up, and surprises the audience by shattering that assumption, getting the laugh. They then follow with various “tag” lines in order to get more laughs out of one joke. Watch Leno tonight and you’ll see what I mean.
The structure of a mediation, like the structure of a joke, is very similar. A mediation also has a set up (the Opening Statements), connector (the part when a mediator facilitates communication and negotiation between the parties) and a punch line (Closing the Deal). Like the comedian, the mediator also plays many roles, including the orchestration of the negotiation. In that role he sets the stage for further discussions; organizes the discussions in a structure which keeps the parties moving forward rather than harping on the past; considers closure techniques that will eventually make the deal a reality.
Similar to a comedian, the mediator “sets up” the negotiation by allowing the parties to speak their mind freely, and position themselves as if they were in court. In essence, the parties are now moving toward a target assumption, namely, that they have a better case then the other party. True to form, the mediator, like the comedian, “connects” these assumptions with considerations about how they might hold up in court. The connector is a way of gently challenging the target assumptions about the case. The mediator does this by simply asking questions and focusing attention on areas of concern about their basic assumptions. This results in the parties rethinking those assumptions and perhaps expressing a willingness to bend in the negotiation.
Like the comedian, the mediator then uses some of the information revealed while connecting with the parties during the question and answer sessions to arm himself with acceptable outcomes provided to him by the parties in confidence. The mediator then pulls the rabbit out of the hat by ostensibly shattering the original assumptions of the parties by revealing or recommending an outcome that the parties will find more pleasant than going to trial. Obviously, the goal in this circumstance is a settlement, not a laugh.
A mediator who is intimidated by disputes with huge barriers between the parties will never get the job done. It’s like going on stage and not knowing how to connect with your audience. A mediator must connect with the players. Acknowledging the barriers and improvising ways to get past them is what stand up and mediation are all about.
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