Originally from Dispute Resolution Journal

The mediation of business disputes can often result in impasse when the parties involved have polarized views of “what happened.” These views are usually based upon lack of information and misunderstandings, says Donald Lee Rome. Fact-finding, Rome says, within the mediation framework, can be a useful tool to help the parties reach a compromise settlement while maintaining good business relations. The following article outlines the fact-finding process and how it can be used to break impasse situations in negotiations.

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.

The Raison D’être for Fact-Oriented Resolutions

When dealing with each other, businesspeople are not in the habit of giving away money, or making other concessions, without some basis for doing so, especially when in the midst of trying to resolve a controversy. Resolution does not require absolute certainty as to who is right or wrong, but it does require something more than the assertion of a claim. There may be good business reasons to compromise—and also not to. A criticism of some mediators in impasse situations in business mediations is that they seek an offer and counteroffer before any serious exploration of important issues is made. This is similar to the businessperson’s aversion to “split the baby” arbitration results. To compromise for the sake of compromise irritates many businesspeople—and for good reason. Yet, many mediators and lawyers for the parties simply have not had enough involvement with business entities and businesspeople—particularly in the corporate environment—to understand what exactly is needed to avoid or break an impasse in a business dispute.