The 4 “Fugetaboutits” in High Conflict Mediation
© 2019 Bill Eddy, LCSW, Esq.
Mediation with one or more parties with a high conflict personality requires a significantly different approach from the standard “interest-based” model that has led the field of mediation over the past 35 years. As of this year, I have practiced mediation for forty years and have been a big fan of the interest-based approach or “Getting to Yes” approach, championed by the Harvard Program on Negotiation.
However, over the past ten years I have come to realize that the emphasis must be shifted to have a chance at successfully mediating high conflict disputes. Here are the four biggest things to avoid or forget about in this approach, which I call New Ways for Mediation®.
1. FUGETABOUT
Giving the parties insights into their own behavior.
High conflict people are stuck in a self-defeating pattern of blame and denial that prevents them from seeing their part in their problems and conflicts. They are preoccupied with blaming others and avoiding responsibility. You cannot break through this, because it has become a part of their personalities for most of their lives. You could yell at them, say it softly, deliver a brilliant analysis of their self-defeating behavior or take a sledge-hammer approach, yet you will still not succeed at giving them insight into themselves.
Yes, this is sad to say, but it just means that we need to adapt our approach to dealing with them without trying to give them this insight, because if you do:
1) They won’t get it and will instead become highly defensive about their own behavior.
2) It will harm your relationship with them because they will interpret your effort to give them insight as a personal attack, meaning that you don’t like or respect them as they are.
Instead, what we do with New Ways for Mediation is to focus them on WHAT TO DO, rather than what not to do. We focus on skills to use in the mediation process, rather than insight about ineffective behavior. We don’t explore their interests, because that would involve insight into themselves and insight into the other party or parties, and that usually blows up into the attack-defend cycle we are trying to avoid.
2. FUGETABOUT
Focusing on the past.
High conflict people are stuck in the past, defending their past behavior as justified and attacking the “very bad” behavior of others. They are preoccupied with talking about how badly people have treated them and their efforts to recruit negative advocates to agree with them and help them attack those bad people (who are often those closest to them or used to be). The more they talk about the past, the deeper they get into their beliefs that it is all other people’s fault and they have to fight for themselves.
Instead, we focus on the future and looking at choices, proposals and information about WHAT THEY CAN DO in the future to resolve or manage their dispute. Instead of asking probing questions about the past efforts or arrangements, we offer them alternatives or options for what they could do in the future. This may involve educating them about what others have done, usually telling about several scenarios so that they don’t get stuck on attacking or defending one approach that the mediator has mentioned. (At least three options is usually the best way to inform them, so they don’t fight over just one or two options as “right” or “wrong.”)
Another approach is to emphasize their own proposals for what to do now, so that they are busy thinking of solutions rather than just emotionally reacting to what another party is saying. (See my book titled So, What’s Your Proposal for more details on implementing this method in any setting.) This can be especially useful for those who have very little time available for mediation, such as just 1-2 hours for the whole dispute.
You can have them come prepared with proposals to discuss so that you can get right down to business. Since there is no exploration of interests before proposals in this process, and there is no opening statement about the past, this can be quite efficient especially when dealing with those who are easily emotionally upset.
Of course, they may need to talk about the past some because it is often a past behavior that has brought them into mediation, especially the mediation of a legal dispute. However, put more emphasis on the future and what to do now. That’s why the fuhgetaboutit is not focusing on the past, rather than never talking about the past.
3. FUGETABOUT
About emotional confrontations or discussions of emotions.
High conflict people don’t go through the normal grieving and emotional healing process the way that most people do. Instead, they carry around a feeling of being helpless, vulnerable, weak and like a victim-in-life. Most people can talk about an upsetting problem for a few minutes to an attentive person and then feel better. However, high conflict people don’t seem to heal past emotional hurts and instead get stuck talking and venting about how upset they are, over and over and over again, without getting relief. What we have learned (the hard way) is that it is better to acknowledge how they feel and them shift the focus onto a task. Then, they generally feel better when they’re engaged in the task than when they are focusing on how badly they feel.
This means that its very important not to confront them with anger, because that just puts them in touch with all of their own unresolved anger. It also means that you shouldn’t tell them that they are frustrating or difficult to work with.
In addition, this means that you shouldn’t ask them how they are feeling. Instead, focus on what they are doing. If you want to make small talk before you get started or at the end of a mediation session, talk about a subject like the weather, traffic or plans for the weekend. An open-ended “how are you feeling today” can easily run into trouble, as it opens up looking at how helpless, vulnerable, weak and like a victim-in-life that they feel.
4. FUGETABOUT
Telling them they have a high conflict personality.
Out of frustration, professionals occasionally tell their clients that they have high conflict personalities or personality disorders. Sometimes they give this as a reason that they want to stop working with certain clients. This is not advised. Remember everything that has been said earlier in this article: they don’t have self-reflection and instead respond defensively; they are stuck trying to prove that they are right and that others have wronged them in the past; and they have great difficulty managing upset emotions.
But most mediators already know not to do this under ordinary circumstance. It’s sometimes harder to remember when dealing with one or more high conflict clients. But remembering this will save you a lot of future stress.
Conclusion
This article describes four things to forget about—to not do—when working with high conflict mediation clients. There are many more things you can do. For more on this, see our resources on New Ways for Mediation on our website. More structure and simple skills tend to help high conflict clients have more success while the mediator has less stress. Most of this is counter-intuitive and the opposite of what you feel like doing. Remembering the 4 Fugetaboutits is a good place to start.
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 for 15 years, a Certified Family Law Specialist lawyer representing clients in family court for 15 years, and a licensed clinical social worker therapist with twelve years’ experience.
