In Mediation Ethics: A Practitioner’s Guide edited by Omer Shapira (ABA 2021), Bill Eddy contributes chapter 8 entitled “Dealing with Difficult Parties” (pp. 165-185.). Mr. Eddy defines a difficult party as
“… someone who demonstrates some or all of the following in the mediation process: exaggerated emotions, adamant directives, attacking and demeaning behavior, difficulty compromising, a preoccupation with blaming others, repeated interruptions, bad-faith participation, mental- health issues, substance abuse issues, and/or a personality disorder.” (Id. at 167.)
Such difficult personalities can stem from personality disorders such as antisocial, narcissistic, borderline, and histrionic, (Id. at 172.) or other mental health issues such as anxiety, bipolar disorder, schizophrenia, (Id. at 177.), or substance abuse involving alcohol, prescription medications, or illegal drugs. (Id.) Such parties can also be violent or abusive. (Id. at 178.)
One of the first questions a mediator must ask herself is whether she should take the case? Does she have the necessary skill, experience, or training to take on such an endeavor? Sometimes, the mediator may not realize she is dealing with a difficult party until after she has begun the mediation at which point, she must ask herself if she wants to continue, refer the matter to another more equipped to handle it, or withdraw/ terminate the mediation.
Assuming the mediation continues, Mr. Eddy suggests that the best way to communicate with the difficult party is to use EAR statements. E stands for empathy; A stands for attention, and R stands for respect. Mr. Eddy empathizes the importance of really connecting with the difficult party; simply reflecting back is not enough. He gives the following example:
“I care that you’re upset about such and such and I want to help you. I respect the efforts you’ve made to solve this problem.” (Id. at 169.)
In terms of conducting the actual mediation, Mr. Eddy recognizes that adaptions should be made. If possible, require the presence of attorneys for safety and competency issues. Also, meet with the parties separately or in caucuses only with the mediator employing shuttle diplomacy. This way, the mediator can deal with the parties one at a time and avoid any confrontational behavior by the difficult party towards the other party. Safety is maintained.
Mr. Eddy also suggests having a pre-mediation meeting with each party. This allows the mediator to assess whether to take the case, get to know the difficult party, begin to design a process that will meet the needs of the parties, and start building trust and rapport with the parties, especially the difficult party. Mr. Eddy also suggests having the parties arrive and leave separately at different times. Again, this avoids confrontation and promotes safety. Further, it may be wise to allow a support person (other than the attorney) to accompany the difficult party who can help the difficult party make rational or reasonable decisions. (Id. at 182-3.)
One very important aspect in maintaining safety is to watch for extreme language. Mr. Eddy recounts a story published in the Los Angeles Times on February 1, 2013, about a mediation between a subcontractor and the CEO of a business for whom he had performed work. The subcontractor had written letters to the lawyer for the CEO, threatening to go after him “with every fiber in my being.” The matter did not settle at mediation. As the parties were leaving, the subcontractor shot and killed the CEO and his lawyer and then killed himself the next day. The mediator was unharmed. (Id. at 183.)
The moral is to listen carefully to the Words being used, pay attention to your own Emotions that such words are evoking, and to the Behavior of the difficult party (aka WEB Method®). If the words and behavior you are witnessing are something that 90% of the population would not engage in, be careful and take it very very seriously. There is indeed a risk of verbal or physical attack. (Id.)
The last adaptation is to focus the difficult person on the future. Such people tend to dwell in the past and on who-did-what-to -whom-when- and why. The key is to have such people make proposals that move them forward into the future. Get them into a problem-solving mode. Keep it simple but structured. (Id. at 184.)
While this chapter and its advice are written in the context of conducting a mediation, its suggestions apply to any situation in which one is dealing with a difficult person. After all, mediation is simply a negotiation aided by a third party. But it is still a negotiation. And as we all know, we negotiate every day with lots of different people- even difficult ones!
…. Just something to think about.