Navigating high-conflict personalities in mediation
I read a highly useful book last year, “High Conflict People in Legal Dispute,” by Bill Eddy, LCSW, ESQ. Eddy is a therapist, lawyer and mediator. He observed that people with certain personality disorders (borderline, narcissistic, antisocial, and histrionic) are disproportionately participants in litigation. Although lawyers cannot, and should not, try to diagnose clients or opposing parties, recognizing certain traits and patterns in their behavior is highly valuable to helping parties resolve disputes. Not surprisingly, the most common of these traits is persuasive blaming.
Eddy writes that “Persuasive blamers persuade others that their internal problems are external, caused by something else or someone else.” In other words, people with high conflict personalities (HCPs) persistently blame others for their problems and work very hard to identify and persuade advocates to help them blame their targets. Because a lawyer’s job is to represent their position, lawyers are viewed as their perfect advocates. To anyone who has been litigating or mediating for many years, this must sound familiar.
Part I of the book explains these personality disorders in substantial depth. Part II of the book provides practical advice on how lawyers and mediators can manage the parties involved to drive better outcomes, and (my words) maintain their own sanity.
Here are a few of my favorite takeaways:
Set realistic expectations for the high conflict personality (HCP) client, including that there will be several ups and downs in litigation. Litigation can be a roller coaster and, to the extent possible, you do not want the ups to create unrealistic expectations or the downs to create panic and disruptive behavior;
Rely on law firm policies regarding payment of legal fees and don’t bend them in order to avoid being taken advantage of. There is a distinct likelihood that an HCP will ultimately blame you if the litigation does not go as they hope. Also, be sure to set personal boundaries and adhere to them. Do not accept weekend or evening phone calls or respond to texts during those hours;
Reality test the HCP’s assumptions and facts. They will recall events in only the most favorable light and often create facts that conform to their narrative. If there are witnesses to events or people who have interacted with the parties, interview them.
Praise the HCP for his or her achievements and compliment their strengths. You must continually show your support to the HCP in order for them to listen to you;
Excessive pressure to settle is likely to backfire. You can present them the facts, advise them on how others might address the same situation, and give them the space to make good decisions. But excessive pressure is only going to make them dig in deeper.
Focus the HCP on tasks, rather than his or her emotions. For many non-HCPs, the opportunity to tell their story and explain their pain is a cathartic and useful exercise. They want to be heard and once they feel heard, they are likely to be more realistic. But with HCPs, the more they are allowed to discuss their emotions, the more likely it is that they will not be satisfied with any compromise.
As another resource, see this article written by Eddy, which shares additional insights specifically related to high-conflict mediations: 10 Paradigm Shifts of High Conflict Mediation.