Managing High-Conflict People in Family Law and Mediation
by Bill Eddy
People with high-conflict personalities appear to be increasing in all aspects of society, especially in legal disputes. When I started practicing as a family lawyer and mediator in 1993, most of my clients were reasonable people who had disputes that were fairly easily resolved. Either we settled their case or spent a brief amount of time in court with the judge resolving one or two issues, then we settled the rest out of court.
But a few of my cases were "high-conflict" cases, in which the parties got stuck fighting over almost every issue. And when we went to court, one or the other party was never satisfied with the judge's decision. They wanted to change the decision by going back to court, by appealing the case or simply ignoring the court's orders.
Over time I got more of these high-conflict cases and started seeing some familiar patterns based on my twelve years' experience as a mental health professional before becoming a lawyer. I started trying counseling types of methods with high-conflict clients and opposing parties (and sometimes the opposing counsel), and they worked!
Over the past twenty years, I have learned many key principles for working with high-conflict people in legal disputes and developed several methods for managing them based on my experience as a therapist, lawyer and mediator. In 2008, I co-founded the High Conflict Institute to develop and teach others methods for dealing with high-Conflict disputes and personalities.
Here are a few of the key lessons we have learned the hard way:
Forget about insight
Forget about giving them insight. Just forgetaboudit! This is what most lawyers and mediators try to do and it doesn't work. Plus, it puts an unnecessary strain on your working relationship. Many high-conflict people have personality disorders or traits, which means that they are unable (yes, they lack the ability) to reflect on their own behavior or to tolerate other people's feedback about their inappropriate behavior.
They are unable to recognize how they contribute to their own problems and they honestly believe that their problems are caused by other people around them - usually people in close relationships with them (like spouses, boyfriends, girlfriends, their parents, their children or close friends) or people in positions of authority (supervisors, administrators, government officials, police). Methods for focusing them on their future choices and the potential consequences of those choices will serve you much better - and create a more satisfying working relationship.
Family lawyers must do their homework
Family law professionals today need to learn about personality disorders, and what works and doesn't work with them. Research shows that about 15% of the United States population has a personality disorder and high-conflict family law cases have a much higher percentage. From several years of trips to Australia, it seems that the prevalence of personality disorders in legal disputes is similar.
One of the characteristics of personality disorders is that they are a hidden mental health disorder in which people can look smart, attractive and competent - except in their close relationships. This means several things: You can't assume to know that "the high-conflict person" is one party, the other party or both parties. So you need to always have at least three theories of your case. Your "reasonable" client may truly surprise you in the middle of the case, although there are some warning signs you might notice in advance.
Also, family law professionals need to understand family dynamics better. True and false cases of domestic violence, child abuse and alienation can look similar on the surface. The under-the-surface facts of these cases really matter, but many family law professionals have presumptions that cloud their openness to looking for the facts. Confirmatory bias leads many high-conflict cases to get stuck in family courts, with more and more anger and frustration, and less and less objectivity and application of useful knowledge.
Even with the addition of mental health professionals, such as psychological evaluators, parenting coordinaters and family mediators, these cases get stuck if the lawyers and judges and other decision-makers don't have much working knowledge of personality disorders and family systems dynamics. Yet this knowledge can move cases much more quickly to resolution and constructive court orders and/or parenting plans for these families.
One of the solutions for high-conflict families is to teach both parents and the children the same simple conflict resolution skills. In 2009, I developed such a method called New Ways for Families® which is now being used on several family court systems in the United States and Canada, with a lot of success at settling high-conflict cases out of court after the parents and children have learned these skills.
Mediators must learn new ways
Years ago in mediation we didn't have many people with high-conflict personalities. But now, with the increasing emphasis on out-of-court solutions for legal disputes, we are seeing the need to adapt our methods. People with high-conflict personalities can't do the insight work that most mediators expect from their clients. In addition, talking about the past causes these parties to totally dig in their heels and resist any efforts to reach settlement.
Therefore, the mediation of any type of high-conflict dispute (workplace, family law, civil law, estate and probate, etc) requires more structure for these parties, more positive simple skills for them to use, more focus on them making proposals, and more empathy and respect for them. At the same time, there needs to be less focus on the outcome of the dispute, otherwise you get into unnecessary power struggles, as the parties must feel that they own the final decisions. I call this approach New Ways for MediationSM. While this feels strange at first, we have taught many mediators our methods with a lot of reported success over the last few years.
How can I learn more?
This brief article just gives a few ideas of what I and the other trainers for High Conflict Institute have learned and are teaching to legal professionals these days. I will be giving an all-day training for family law professionals in high-conflict knowledge and methods on 11 September. Then on 12 September, I will be giving an all-day mediation training for any mediators (family, workplace, civil, etc.) in methods for managing and resolving high-conflict disputes.
About Bill Eddy
Bill Eddy is a lawyer, therapist and mediator in California, the Senior Family Mediator at the National Conflict Resolution Center in San Diego, and the President of the High Conflict Institute based in San Diego, California. He is the author of several books including High Conflict People in Legal Disputes. For more information: www.HighConflictInstitute.com.
Upcoming Events presented by Bill in Melbourne
|Managing High Conflict People in Legal Disputes|
3 day workshop
|$2090 inc GST||6, 7, 8 September |
8.30am - 5.00pm
|24 units CPD*|
|Managing High Conflict in Family Law|
1 day workshop
|$990 inc GST||11 September, 9.00am - 4.30pm||6 units|
Mediating High Conflict People
$990 inc GST
|6 units CPD*|
See Bill's 2016 Webcast here
*Please confirm how many CPD units you can accrue with your member association.
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