High Conflict Mediation: 4 Tips for Mediators
High conflict people (HCPs) are highly defensive, preoccupied with blaming others, and desperate to receive validation for themselves. These characteristics may be part of their personality, in which case they bring this defensiveness with them everywhere they go. In some cases, both parties are HCPs, while in others one party is stuck in this defensiveness and the other is reasonable some or much of the time.
During a conflict, decision-making reinforces defensive traits, so that the successful mediator must do as much as possible to defuse this defensiveness in order to assist the parties in making their own decisions. It is natural for mediators to get “emotionally hooked” and escalate the dispute by becoming over-controlling and feeling responsible for the outcome, but this feeling can be overcome by reminding yourself: “You’re not responsible for the outcome.” “It’s not about you.” “Don’t work harder than your clients.” “It’s another dilemma for the parties to resolve.” The following four tips can help the process.
1. Bonding: You need to pay more attention to your relationship with high conflict clients. Emphasize E.A.R.: Empathy, Attention and Respect. When they get upset, rather than appearing angry with them, criticizing their behavior, or trying to take a decision-making role (“You’re being unreasonable,” or “Try to control yourself”), instead say, “I can empathize with how difficult this process is.” “I can empathize with how important these decisions are to you.” “Don’t worry, I will pay attention to your concerns.” “I really respect the efforts you have made to present a thoughtful proposal.” “I respect the research you put into preparing this proposal.” This doesn’t mean that you agree with someone with whom you empathize or show respect. This doesn’t mean you have to listen forever. You can interrupt a high conflict person with an E.A.R. statement. You can also show E.A.R. non-verbally by leaning in, nodding your head, etc. Really resist the urge to take sides and the urge to criticize or get angry at their self-defeating behavior. Emphasize E.A.R. over and over again, and they will usually calm down. You will have to repeat this.
2. Structuring: HCPs need more structure, to avoid slipping into their distracting emotions. So give a larger explanation at the beginning. Structure the process around Make a Proposal: “Throughout this divorce mediation, we will focus on the future and making proposals. It’s natural to slip into talking about the past and what each other did badly. Instead, I will redirect you to just Make a Proposal. Then, after you hear a proposal, just respond with ‘Yes, No, or I’ll think about it.’ Then, throughout the process when they slip into arguing, blaming, and focusing on the past, don’t criticize them – instead just interrupt and ask “So, what’s your proposal?” Just keep repeating this throughout the process, and they eventually start asking each other: “Soooo [Mr. Smarty-pants][Ms. Blame-worthy] What’s YOUR proposal?” And that’s really what you want: to train them to do this with each other on their own. Repetition helps.
3. Reality-testing: HCPs constantly distort information, usually without knowing it. So they repeatedly present the mediator with impossible issues: “He’s hiding money - I know he is!” “No I’m not! She’s just paranoid.” The mediator will be tempted to lean on one or the other party to resolve this issue, but it’s better to strongly avoid even the appearance of taking sides and instead tell the parties “You might be right! You Have a Dilemma!” and educate them about their realities and their options. “Sir, you might be right. And Ma’am, you might be right. I’ve see cases where one party was truly hiding money. I’ve also seen cases where one party was working very hard and not hiding money, but the other party was still suspicious. In mediation, I can’t resolve this issue for you and I can’t research it. So here’s some options: 1) you can stop mediation and do thorough discovery with separate attorneys, accountants, whatever, and then go to court; or 2) you could do some discovery and then return to mediation and decide what to do next; or 3) you could continue in mediation and ask for more information or work with what you have, and accept the uncertainty of never knowing for sure – and you may never know for sure if you do extensive discovery. You have a dilemma. What would you like to do now?” Avoid the urge to pressure one party to “be more disclosing,” or the other party to “just let it go.” As a mediator, you’re only responsible for educating them and referring to legal and financial advice.
4. Consequences: HCPs are surprisingly naïve about the self-defeating consequences of their behavior. You will be shocked! Just try not to show it. Instead, educate them by focusing on Indirect Confrontations. These are non-threatening pointers which do not criticize the person or threaten your relationship with them. Instead, Indirect Confrontations involve giving external reasons for various consequences of various future options. “Actually, you may not realize it, but the law does not allow you to do that proposal.” “Actually, our firm’s policy does not allow you to require a party to sign a deed for the house without plenty of time to think about it.” [One party actually came with a deed for his wife to sign, and he hired a traveling notary to show up at our office! So that’s what I told him.] “Sorry, but our policy does not allow me to write an agreement with that much discrepancy in the property division, without a review and sign-off by a separate attorney.” And if you don’t have a policy on a subject, say you need to get back to them – and then develop a policy. HCPs are really good at finding the loopholes in rules and procedures.
Note: Using this approach may not feel directive enough for some clients and professionals, but this is really a question of balance. If a mediator becomes too “directive” by taking sides, pressuring for a settlement, or otherwise feeling responsible for the outcome, you will become one or both parties’ Target of Blame – because now it’s your agreement. However, you may need to be very directive with HCPs sometimes, but be directive in doing the above four methods, while remaining strictly balanced and neutral. For example, you could give them both more structure by asking them each to write down a confidential proposal on an issue for you alone to see. Then tell them if they are within range of an agreement, or so far apart that you wonder if further discussion is unlikely to resolve the issue. Then, ask them if they want to see both of their proposals. This keeps you in a strictly neutral role, while coming up with suggestions for things to try. Also, give them three or more suggestions based on what others have done, and ask if any of those ideas might help them. But most of all, don’t work harder than your clients by becoming too directive. Instead, openly tell them “I’m out of ideas. Can you folks think of anything else? I’ll keep working with you, but I’m not sure that I can resolve your issues. Do you want to keep trying?” This statement keeps the dilemma on the parties and reduces your level of stress. Good luck!