Gladiators and the Symphony Orchestra Conductor

If you have watched the movie, “Gladiator,” you would have seen that what determines a true gladiator is the fact that he is standing at the end of the battle. One survives, and one dies. Gladiators not only fight to win, winning indeed means to stay alive at the expense of the person who loses. In other words, at the end of a gladiator battle, one person will live, and one person will die; it is a fight to the finish. It almost perfectly depicts the adversarial approach to addressing disputes through litigation. I must give the credit to a good mediator friend of mine, Kathleen Leady, who first suggested to me that litigators are like gladiators, and this got me thinking. When the litigator comes into court, he or she has only one objective: to “destroy” the other side’s case, in essence, to kill them, to kill their cases.

I saw this in the movie, Ben-Hur. Ben-Hur had a close friend. They were like brothers. One was a Roman. One was a Jew. But one day something happened that affected their friendship and a series of events culminated in which they had to face each other face-to-face in a fight. And it became a fight to the finish. One had to die, and one had to live. Friendship could not help! It was cast aside. That is what litigation does. Note that many of the lawyers that you find in the courtroom battle are friends outside of that arena, and that is why I refer to the story of Ben-Hur. The moment you get into the arena, all the notions of friendship, all the qualities that you can think about, all the things that could commend themselves, fly out the window. Friends become sworn enemies and when they go into the arena, they have only one objective: “I must come out of this place alive, and that only means that the other person will die. Both cannot survive and neither will their friendship or any other kind of relationship.”

In fact, I remembered in my early days in litigation as a young advocate, I came to court, and I was facing a senior colleague of mine. He said, “I’m going to kill you,” and that has stayed in my mind. Of course, I knew that he was not speaking literally, but I knew what he meant. “I am not going to go out of here. I am going to kill you. I do not care. You might be a young person, but here, you are a gladiator, and I am going to fight you to the finish. You live, or I live; you die, or I die; and, since I have no intention of dying, you will die. I will live.” And I said to him, “Don’t be too sure. I think I’m going to kill you instead.” Typical litigation frame of mind. Hostile and tense! Sometimes under a cloak of diplomacy and tact! But no doubting the objective. Even when there may be a reason to say, “Hey, let’s try and see reason, let’s help each other here,” the system just does not allow it. Judgment must end in favour of one person, only.

Now let us move over to the symphony orchestra. In a symphony orchestra, all the instrumentalists and their various instruments have different sounds. And some of them are as different in their sounds as a trumpet and a violin, as a double bass and various kinds of drums. They sound a bit confusing. And you know that confusion for me represents the kind of frame of mind that develops often when there is a comfort or a dispute. Things are unsettled. And if you are there on time, when they come in at first, they are all trooping in one after the other, it tells you how the various issues arise. Then they begin to tune. That’s the first thing that happens. Each actively listens to the other, for they must come on at the same time-frequency, and the same key, indeed, the same wavelength. They must be in tune, each one with all the others, even though the sounds are different. Similarly, we listen in mediation not just to hear but to become in tune. You want to make sure you want to find a place where everybody comes onto the same wavelength. And as you ask them questions, you get to understand where they are coming from. Like the instrumentalists and their conductor, you hear all the various sounds, hear their attuning. The only way they can tune is to listen to one another. And as they listen to one another, they adjust their instruments until all of them are sounding in the same key in harmony.

Now, the second thing that then follows is that the director or the conductor comes in. The audience acknowledges the conductor because this is the person who is going to help us to bring a beautiful sound out of this cacophony of sounds we have heard earlier. So, he comes in and he takes a bow. He lifts his hand, and everything goes quiet. Then he gives his count and then he brings his hand down and you hear the first cord. And suddenly, all you hear is one sound, one unified sound, one blended sound. Unless you are a trained musician whose ears have been trained, you can no longer pick out the different instruments. They all blended into one sound. This is the ideal objective of mediation. It does not say that we all become the same. It does not wipe away our individuality; the trumpet does not become a flute. The flute does not become a violin, but together they make one sound that is pleasant to the ears of all of them and to the ears of everyone else who listens.

Therefore, my objective as a mediator is to be like that conductor of the Symphony orchestra. This is what we try to accomplish as mediators: to get all of them together to sing the same song and, without losing individuality, to become blended into one vast, unified, combined sound that the listeners find pleasant. Everybody is devoted. Everybody is passionate. They are all working together. The conductor has caused them to blend despite their differences and they have produced the same music. No one instrument is going to overcome the other, no one will be allowed to sound louder than they should sound. Common goal? A well-blended sound.

Now, if I am going to be an effective mediator, that is what I would always want to achieve. That blended sound, where everybody blends in with the same music, but our sounds have not changed. And they can all go away pleased, but no one lost his individuality. No one compromised himself, no one was less than himself or more than himself, everybody got there. That is what mediation achieves. This is our philosophy at TDSH – The Dispute Solutions Hub (TDSH).

So, let’s make music. Let’s form an orchestra. Let’s play a symphony, let us mediate.