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Resolving Impasse in the Collaborative Process by David Hodgson

Updated: Mar 26, 2023

A difference in opinion on a substantive issue in the collaborative process can lead to a position of impasse. Should this arise and a compromise proves impossible it does not necessarily follow that the process fails and court adjudication is inevitable.


The advantage of the collaborative process is that it is flexible and can tailored to a couples’ needs. Should there be a position of impasse there are a number of options available which will obviously depend on the issue concerned. Some options involve the participation in an alternative process and others involve the use of third parties.


In terms of third parties, it is always possible to jointly engage a specialist expert who will act impartially and provide crucial information to empower the parties to make an informed decision. An expert’s considered opinion is often invaluable and will guide the parties towards the best solution for them.


If the issue is a legal one, and it would help the parties know how the courts would approach matters, legal counsel can also be asked to provide a joint opinion. Such an opinion can often break any impasse, will enable the collaborative process to continue as well as saving the parties a lot of time, cost and emotional energy; all of which would be required in any contested court application. As with other experts, legal counsel can be invited to express an opinion in writing or in person at a four way meeting between the parties and their lawyers.


In terms of other processes, mediation may offer a solution. This involves the an independent mediator to facilitate direct discussion between the parties. This is less likely to solve any issue of impasse which has arisen in the collaborative process, as such direct discussion can be facilitated in the collaborative process. Sometimes, particularly in issues concerning children, it may assist the parties in making decisions, to hear the views of any children. If suitable, specially trained mediators can involve children in the mediation process in an appropriate and sensitive way. The enables children to have an opportunity to have a voice but not burden them with the responsibility of making any decision.


If the participation agreement allows, another alternative process is arbitration. Arguably this is more controversial, as some may think that it is contrary to the principles of the collaborative process. Arbitration is a form of adjudication, placing the responsibility of the decision making into the hands of a jointly appointed arbitrator, away from the couple themselves. Arbitration however is flexible. It can be used to resolve a discrete issue and be conducted on paper, providing a less adversarial feel as opposed to court proceedings.


If there is a consensus but just one issue which is leading to a position of impasse, arbitration is undoubtedly a better alternative to court. If the participation agreement allows, it will not involve the engagement of alternative lawyers. It will also allow any issue to be determined far quicker and cheaper, with less emotional turmoil than any court application.


By engaging in the collaborative process, parties are committing to resolving issues constructively and away from the courts. This should lead to a better family based solution reached through compromise and dialogue. It is hoped that a solution can be found without the parties ever being in a position of impasse. However, as can be seen even if impasse is encountered, it does not mean that the collaborative process must end. There are a number of options available to ensure that any impasse is addressed in a constructive and effective manner.



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