Mediating High Conflict Disputes (PDF)

Over the past twelve years, the authors have been developing and practicing tips for managing high conflict clients in mediation, which is now a fully developed new method: New Ways for Mediation.®

This ground-breaking book gives all of the little tips which any mediator can use, as well as the step-by-step structure of the New Ways for Mediation method for those who want to have better control of the process in high conflict cases—or any cases.

Bill Eddy is primarily a family mediator in San Diego, California, with a worldwide reputation for training mediators, lawyers, judges, and counselors in methods for working with clients with “high conflict” personality disorders or traits. Michael Lomax is a mediator dealing with family, workplace, military, and government agency disputes in British Columbia, Canada. Both have provided training in this method for High Conflict Institute over the past twelve years.

ADR Institute of Canada Book Review

More information about New Ways for Mediation Training here.

The Authors

Bill Eddy, LCSW, Esq., is the co-founder and chief innovation officer of the High Conflict Institute in San Diego, California. He pioneered the High Conflict Personality Theory (HCP) and has become an expert on managing disputes involving people with high conflict personalities. He was the senior family mediator at the National Conflict Resolution Center, a Certified Family Law Specialist lawyer representing clients in family court, and a Licensed Clinical Social Worker therapist . He serves on the faculty of the Straus Institute for Dispute Resolution at the Pepperdine University School of Law in California and is a Conjoint Associate Professor with the University of Newcastle Law School in Australia. He has been a speaker and trainer in over 30 U.S. states and 10 countries. He is the author or co-author of sixteen books and has a popular blog on the Psychology Today website with over 3.5 million views.

Michael Lomax, JD, Michael Lomax, JD is a lawyer by profession, mediator, and international speaker/trainer.  He practiced family law for over 20 years and early in his career, ceased his court practice to focus on mediation and collaborative law.  In 2021, he received the Susanna Jani Award Supporting Excellence in Mediation from MediateBC. Michael has conducted hundreds of mediations including family, workplace, multi-party, and court-related matters. He has significant experience leading the design and implementation of workplace conflict management programs for large organizations. Michael has developed training for government, law firms, corporations, military, law enforcement, human resources, and unions. He has been an Associate Speaker/Trainer with High Conflict Institute since 2011 and lives on Vancouver Island.

Foreword

Mediation has come a long way over the past several decades. As an alternative to litigation, it has found its own identity and has established its rightful place in an increasing field of alternative dispute resolution methodologies. As with the evolution of any rising movement, mediation has expanded into several mainstream models, from its origins of “Facilitative” through “Evaluative” and “Transformative” and into “Therapeutic” and “Strategic.” As these theoretical movements were evolving, Bill Eddy found a unique niche, with his insight that there exists what he has coined “High Conflict People” (HCPs). In fact, he asserts that this group of people comprises 10% of our population and HCPs are present in every walk of life. As co-founder of the High Conflict Institute, Bill has actively promoted the special ways with which high conflict people need to be managed, whether in mediation or in ordinary relationships. His wide-ranging collection of published books on this topic has served as a seminal contribution to our growing knowledge of conflict and its resolution.

Bill Eddy’s latest innovative book, Mediating High Conflict Disputes: A Radical New Model with Tips, Tools and the New Ways for Mediation Method, written with co-author Michael Lomax, continues his legacy of detailing and further refining his concept of the High Conflict Person (HCP), a concept that has proved to be extremely useful to and well-received by both professional mediators and the general public. This book will be of enormous practical value to practicing mediators across a range of settings.

Bill’s gifts of simplifying complex psychological (and relevant brain research) concepts that explain the HCP, and offering practical, scripted interventions for effectively managing and calming them down, are on full display in this book. Moreover, the successful methodology of his New Ways model is featured in this book to include its use not only in divorce mediation cases, but in workplace disputes, elder mediation, and large-group disputes, as well. In this book, Bill and Michael further offer a range of specific, useful tips, and ethical considerations for the mediator in these settings. Also, they provide a comprehensive outline of the New Ways methodology, along with role-plays, for the practitioner to use immediately upon the completion of reading this book—a generous offering, indeed.

As detailed in this book, dealing with HCPs in the context of mediation requires a different way of thinking. Whether there is just one HCP, or two or more in a particular context of dispute resolution, the practitioner needs to understand and appreciate the necessity of operating differently with them than when mediating with “reasonable” disputants. The authors present, in simple and clear language, how the architecture and functioning of the HCPs brain appear, according to current neurological research, to be different than the brains of more “reasonable” people, and, as a result, there are expected and predictable outcomes in their behavior. Knowing these links between brain and behavior can immensely help the practitioner in not falling down the rabbit hole of escalating conflict and predictable impasse. The authors, supportively and repeatedly, remind the reader that most of the unhelpful conflict that arises when dealing with HCPs is created by the HCP, not by the practitioner (“Remember, it’s not you, it’s them!”). Their tendency towards conflict merely reflects the unique wiring and presumed limitations of the brains of the HCPs. Trying to persuade the HCP to be more logical and reasonable falls on deaf ears; it is a matter of can’t rather than won’t. The authors give practical ways to maneuver around the limitations of the HCP so as to increase the practitioner’s effectiveness in helping the disputants reach agreements—no matter the context of the dispute.

As the authors guide the mediator through high-conflict disputes, they present step-by-step details of the process, the order of issues to tackle, and the ongoing mandate for maintaining client self-determination of the content while the mediator maintains very structured control of the process. Throughout the book, the authors give good details and plentiful examples of scripted statements, specifically designed to calm down the HCP effectively and preemptively from escalating.

Some of the suggestions presented for managing HCPs are counter-intuitive or counter to regular mediation training. For example, the authors recommend having the clients, rather than the mediator, set the agenda. This helps to focus the HCP on tasks rather than emotions and helps rein in their tendencies to be emotionally reactive.

And, while conducting mediations with an HCP, the authors advise against using the traditional “interest-based negotiations,” in which exploring the interests of the parties come before making proposals. These authors suggest the opposite order of these in mediating with an HCP; make proposals first, as part of the critical need to set structure up-front, then interests can be explored within that discussion, not before. This approach helps contain the HCP from getting caught up in negative emotions and hijacking the mediator’s best efforts.

The authors of this book also suggest, in spite of the multitude of workshops available in the mediation marketplace on the “The Power of Apology,” that the mediator not support or encourage clients to apologize to an HCP. They dub it “Apology Quicksand” and view the HCP’s demand for an apology as “… a move to dominate or humiliate the other party, and to justify their own behavior…By seeking an apology, they can deny any responsibility whatsoever for the conflict, when it often is partly or mostly their own behavior that was a problem.”

And, as a last example of counter-intuitive suggestions, the authors discourage using a Transformative Model of mediation in workplace settings (Note: Transformative Mediation is the model used exclusively by the United States Postal Service!). The authors point out that this model is based upon encouraging insight and self-reflection within the disputants, which they assert is not possible with HCPs, and that it would only further focus them on their negative emotions, which tends to escalate conflict.

In sum, this book is an important, detailed, and practical summary of the special modifications of approach needed by mediators when dealing with disputes that involve high conflict. Such disputes typically have at least one High Conflict Person, who can drive the dispute to impasse, unless the HCP and the dispute resolution process are managed differently than in the usual ways. Whether you are a beginning or a very seasoned mediator, this book will show you the New Ways to do it.

Donald T. Saposnek, Ph.D.
Author of Mediating Child Custody Disputes
Co-Author of Splitting America, and The Child Support Solution

Praise

“It is great to see this practical and readable book that focuses on high conflict behaviours. This book will benefit all those involved in Alternative Dispute Resolution processes and the specific focus on mediation is timely and useful. The extensive, well-known and highly regarded work by Bill Eddy in relation to high conflict behaviours is well extended with an excellent collaboration with Michael Lomax.”

— PROFESSOR TANIA SOURDIN, DEAN AND HEAD OF SCHOOL, UNIVERSITY OF NEWCASTLE, AUSTRALIA NEWCASTLE LAW SCHOOL

“If I took all of the training, conferences, books and experience I have been exposed to and put them into an all-encompassing, organized, easy-to-read and practical resource I would have Mediating High Conflict Disputes. Bill and Michael have captured the essence of these disputes and how, as professionals, we can help clients work through them.”

— ELIZABETH A. HYDE, B.ED., LL.B., LL.M., ACC. FM, FDRP PC MEDIATOR/ARBITRATOR/PARENTING COORDINATOR/TRAINER

“Eddy and Lomax’s masterful work, Mediating High Conflict Disputes, challenges the ‘mediation status quo’ and gives us permission to think differently. As Mediators, we inevitably encounter clients with high conflict personalities, but we can prepare and empower ourselves to maintain control of their mediation process. New Ways for Mediation teaches us how to manage communications with these clients, using strategies and techniques that are equally unexpected and powerful.”

— MICHAEL AURIT, PRESIDENT OF THE ACADEMY OF PROFESSIONAL FAMILY MEDIATORS, CO-FOUNDER OF THE AURIT CENTER FOR DIVORCE MEDIATION, ADJUNCT PROFESSOR AT THE STRAUS INSTITUTE FOR DISPUTE RESOLUTION AT THE PEPPERDINE SCHOOL OF LAW, AND THE LODESTAR DISPUTE RESOLUTION CENTER AT ARIZONA STATE UNIVERSITY'S SANDRA DAY O'CONNOR SCHOOL OF LAW

“Bill Eddy has a well-deserved international reputation for his insights and training for professionals in dealing with high conflict adults. His newest book, Mediating High Conflict Disputes, underscores that reputation and adds his stature as a master trainer of mediators.
A focused lens on just one chapter of this breakthrough book helps us understand Eddy’s brilliance and contribution to the mediation training field. I am particularly taken with the chapter on Pre-Mediation Coaching.
In my own training and writing, I have stressed the importance of starting mediations with PPP (Private Preliminary Planning Sessions) with each party. While this protocol differs from strategies by mediators who favor joint sessions with the parties only, I have found that the PPP helps build rapport with the mediator and the parties and prepares parties for a successful mediation through education and direct coaching.
Eddy’s chapter takes the PPP to a new level of understanding and nuance. His insights and tips are applicable to the low and moderate parties as well as the 10-20% of high conflict individuals. Just some of Eddy’s contributions include:
• Timing and structure of pre-mediation coaching to maximize its benefits
• An agenda for teaching parties how to succeed
• Insights about high conflict mediation participants stressing the importance of going over material at least twice due to their reactivity and having parties’ sum up coaching lessons to sear in the tips for later use
• The importance of the mediator taking the lead to control coaching sessions to assure that high conflict parties have the opportunity to soak in the mediator’s help
• Moving parties to a future preventive vision rather than stewing about past hurts and failures
This book and its lessons will now have a place in my trainings and those of other instructors in Mosten Guthrie Academy. I cannot imagine a professional mediator working with difficult parties before being trained in the Eddy method (named New Ways for Mediation® because of its focus on new skills) as exemplified in this book.”

— FOREST (WOODY) MOSTEN IS A MEDIATOR, COLLABORATIVE LAWYER, AUTHOR AND TRAINER. CHAIR OF THE INTERNATIONAL TASK FORCE FOR ONLINE MEDIATION TRAINING ONLINE MEDIATION TRAINING TASK FORCE RESOURCE CENTER (MEDIATE.COM), WOODY PRACTICES AND TRAINS INTERNATIONALLY ONLINE. HE CAN BE REACHED AT WWW.MOSTENMEDIATION.COM AND WWW.MOSTENGUTHRIE.COM

“As a divorce attorney and mediator for more than 30 years, I have heard people say that it is impossible to mediate high conflict matters more times than I can count. With Mediating High Conflict Disputes: A Radical New Approach with Tips, Tools and the New Ways for Mediation Method, Bill Eddy and Michael Lomax have upended that paradigm and have forever changed the face of mediation. This book is simply a MUST for every dispute resolution professional going forward and will be my go-to resource forevermore!”

— SUSAN GUTHRIE, LEADING FAMILY LAW ATTORNEY, MEDIATOR AND THE AWARD-WINNING HOST OF THE DIVORCE & BEYOND PODCAST

“It is an honor for me to recommend Mediating High Conflict Disputes: A Breakthrough Approach with Tips, Tools and the New Ways for Mediation Method, Bill Eddy and Michael Lomax and to thank them for their extraordinary generosity for sharing their experience with the rest of the world in order to enable other professionals to deal successfully with HCPs. This book is an important and significant breakthrough made possible by creative thinking that combines multiple perspectives, the best in the world of therapy and the best world of law into the work of the mediator, who does not shy away from the challenge involved in working with high conflict disputes. These are methods that must be learned and integrated in the evolving toolbox—that every professional mediator must persevere and increase all the time. The tools proposed in this book will greatly contribute to the work of mediators around the world, thus helping to reduce the amount of high conflicts disputes, prevent escalation, minimize the cumulative social harm, and in the long run will make the world a safer and more peaceful place.”

— MICHAL FEIN, LEADING FAMILY LAWYER AND MEDIATOR, SOCIAL ACTIVIST AND AUTHOR OF INSPIRATION, STRUCTURE AND DEFAULT - A NEW ISRAELI LAW REDUCES LITIGATION IN FAMILY CONFLICTS BY 45% COLLABORATIVE REV. VOL 18(2) (2019)

“As a training provider of facilitative and transformative mediation training, I recommend Mediating High Conflict Disputes not because it just re-enforces what we teach in our basic mediation training but because it draws significant distinctions! Bill Eddy is the leading expert on working with high conflict people in dispute resolution and legal environments. Although they only make up about ten percent of the population they are significantly over-represented in disputes. This book helps you to identify the people who need you to modify your mediation facilitation approach to deal with the challenges of their interpersonal style and more importantly shows you how to make those modifications. Reading and applying the wisdom in this book should be mandatory professional development for all mediators.”

— JOANNE LAW, NMAS MEDIATOR AND FAMILY DISPUTE RESOLUTION PRACTITIONER, OWNER OF MEDIATION INSTITUTE, AUSTRALIA AND CO-FOUNDER OF INTERACT SUPPORT INC.

“Roger Fisher and William Ury suggested focusing on the problem, not the people. Bill Eddy and Michael Lomax fill in the gap when the person IS the problem. This is an enormous help to mediators. However, mediators may react to their approach with skepticism or alarm, because it is completely counter-intuitive.

I am a good example. I have been a confirmed Interests-Based Facilitative mediator for decades, and also a fan and admirer of Bill Eddy and his brilliance. Because his approach is so opposite to my general approach and values — and counter-intuitive — it has taken me a long time to adopt his approach even in the face of difficulty with a clearly High Conflict Person as a mediation client. Of course, once I tried his suggestions, I found they worked wonders. I am hooked.

Now Bill Eddy and Michael Lomax have written the guidebook, Mediating High Conflict Disputes, and it is extremely helpful. In addition to theory and understanding, in addition to the EAR and BIFF approaches, Bill and Michael have provided a step-by-step guide, including sequences, outlines, scripts and case examples. It is truly a masterpiece, one that will be dog-eared by use in many a mediator’s office.

Thank you, Bill and Michael. It’s a great addition to the High Conflict Institute library.”

— ZENA ZUMETA, ESQ. MEDIATOR AND TRAINER, ANN ARBOR, MICHIGAN