Caldwell & Kearns, P.C.
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Is there some way to overcome a mediation impasse?

It is a principle of law that every contract implies a duty of good faith and fair dealing by all the parties who sign the agreement. How that translates into action is less clear, as all experienced attorneys know. Courts can and often do recognize that the bounds of what constitutes proper enforcement and performance under a contract can vary depending on the circumstances of a given case.

It is unrealistic to think that conflicts will never happen between two individuals. Whether the parties are family members or business colleagues, disagreements arise. There are different ways to resolve the issues. Litigation is always possible, though in recent years mediation and arbitration as alternatives have become more common, holding out the hope of finding common ground with less drama and cost.

Getting beyond the barrier

Even when both sides enter into alternative dispute resolution processes equally committed to reaching an accord, there is a chance of gridlock. The challenge then becomes deciding whether the impasse can be overcome. It can take extra work, but experts generally agree it is possible.

Here's what may help.

  • Go to neutral corners: Taking a break is from the fray has a long tradition of acceptance. Boxing employs it. Time and distance away can provide a chance to come back to the table with a new perspective.
  • Move on to something else: If there's a less divisive issue that can be tackled, focus on that. If progress is made it can generate momentum when the old issue is revisited.
  • Acknowledge the wall: Both sides share in the impasse. One way to get through it is to examine, with the mediator's help, what next steps might help.
  • Perform a recap: By going over what points have been agreed upon and taking stock of each side's original positions, the obstacle may seem less of a hurdle.
  • Conduct a reality check: Asking both sides to consider "what if" can motivate action. Often the desire for closure or fear of financial loss sparks change.

In the end, success through ADR is realized when all sides are satisfied all others have fulfilled their implied duty of acting fairly and in good faith.

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