Resolving Business Disputes: Fact-Finding and Impasse - Chapter 64 - AAA Handbook on Mediation - Third Edition
Donald Lee Rome, former Senior Partner at Robinson & Cole, was a Full-time Mediator and Arbitrator in business cases. He served on the American Arbitration Association training faculty and on the AAA roster of mediators and arbitrators. Now retired, he has had more than 40 years of legal experience with corporate transactions, including financings and reorganizations. Mr. Rome was the Chairman of the Dispute Resolution Committee of the Business Law Section of the American Bar Association. He was a contributing author of the Mediation Practice Book, the Collier Bankruptcy Practice Guide, and Asset-Based Financing. He was also the editor and principal author of the Business Workouts Manual.
RESOLVING BUSINESS DISPUTES: FACT-FINDING AND IMPASSE
Donald Lee Rome
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.