by David Pomeroy

Two men meet on the street.

One asks the other: “Hi, how are you?”

The other one replies: “I’m fine, thanks.”

“And how’s your son?  Is he still unemployed?”

“Yes, he is.  But he’s meditating now.”

“Meditating? What’s that?”

“I don’t know.  But it’s better than sitting around and doing nothing.”

    Recently, while sitting around “meditating”, a thought entered my relaxed mind about an approach to use in mediation sessions to emphasize the opportunity that the participants have to bring the litigation in which they are involved to a final, acceptable conclusion.  I doubt that this “thought” is original with me—it probably originated with a learned teacher and surfaced from my subconscious, struggling upward through layer after layer of brain cells long dead from a life of wretched excess.  Nonetheless, I will share it here.

    There are three ways to resolve lawsuits (actually, there is a fourth—voluntary dismissal—but how often does that happen?):

    First, there is a dispositive motion.  A dispositive motion is addressed to the judge and is successful when the judge finds that one party is entitled to judgment as a matter of law.  This not a final resolution because it is subject to appeal and the expense, delay, and uncertainty that goes with that.

    And then there is trial where the outcome is decided by a jury and, after all that time and expense, is subject to appeal and all that goes with that.

    And then then there is settlement which mediation is designed to promote.  There an agreement is crafted by the parties with the assistance of counsel and the mediator—and is not subject to appeal.  Finality is achieved. And finality has great value.

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