Donald Lee Rome is a mediator and arbitrator specializing in business, financial, and commercial disputes. He is retired from the law firm Robinson & Cole where he was senior partner. He is on the AAA’s National Roster for Commercial Financial Disputes and the Mediation and Arbitration National Commercial Roster.
A typical impasse in a business mediation usually occurs when one party is demanding too much money, and the other is offering too little—or none at all. Furthermore, the impasse will generally not be broken if the mediator tries to “move” the parties in the direction of the traditional dollar-focused compromise settlement. This is because in many cases of an impasse in a business mediation, a resolution will only occur when mediator-assisted fact-finding is discussed with the parties as an option to help them reach a compromise settlement.
But some would say that fact finding is just what mediation is designed to avoid; that they are not trying to prove who is right and who is wrong; that they would rather not have discovery; and that they need to look to the future, not the past, for solutions. All of this is true. But for a large percentage of business disputes, when an impasse occurs or is likely, some degree of fact-finding is needed to enable the parties to break or avoid stalemate and to reach a fact- and situation-oriented business resolution of the dispute.