High Conflict Mediation and Ethics

When some people imagine what it’s like to participate in mediation they have an image of people sitting around a table, people readily acknowledging their differences and then engaging in a challenging, yet productive conversation that gets them to a resolution. In many ways the image is one of a polite win-win outcome.

At times, mediation is exactly that way. However, in many instances mediation follows a course that is far rougher – a course that often feels like hiking on a steep path fraught with loose rocks, high boulders, stray branches and slippery mud. Whether these high conflict situations arise within the context of divorce, in the midst of a heated employment situation that has already had several human resource interventions or amidst a sibling group arguing about how to care for elderly parents, these mediations present seemingly uncontrollable emotion, blaming accusations and little self-awareness, self-accountability or capacity to actually listen.

High conflict work constantly reminds me of how important it is for mediators to be committed to a highly ethical practice. High conflict work is not for every mediator and every mediator is not equipped to work on that slippery path. In fact, some people in conflict who would like to participate in mediation are frankly, just not appropriate candidates. The line between who is best suited to mediate and who isn’t suited is a delicate line. For mediators, the line between handling a merely tough situation and working with people who persist in appearing to be incapable of working together is also a delicate line …

For me, an ethical framework for mediation requires an honest self-assessment as to the skill level one has to work in high conflict situations. For mediators in private practice, as with people in many other helping professions, the desire to be helpful to people can be a powerful force. In an economy where it’s difficult for private mediators to earn a reasonable living doing only mediation, the lure of taking clients and bringing in dollars can be compelling. For mediators who work in court programs, the push to get cases resolved can inhibit a clear assessment as to whether mediation is appropriate. Given those drivers it’s essential for mediators to make an initial assessment as to who is appropriate for mediation, and to make continual assessments regarding the progress of mediation and the capacity of people in conflict to keep moving forward.

To maintain an ethical stance requires a mediator to be diligent about assessing his or her own capacity to work with high conflict people. It can also require a mediator’s willingness to participate in peer groups or formalized supervision so the mediator has a time and place to sort through the challenges brought by high conflict clients. Being the navigator of high conflict work requires a mediator with a strong sense of resiliency as high conflict work can be draining and defeating.

That means that an ethical practice requires positive self-care. Process management is a critical component of high conflict work and mediators who work in this arena must have a high degree of skill in designing and enforcing structures and behaviors that support people to move forward through these difficult, entrenched engagements.

Many people in constantly high conflict have little ability to self-manage. A mediator who does high conflict work has to be able to manage people who are not able to self-manage. Though conflict is extremely high the mediator must manage in a way that still permits clients to remain empowered to make their own decisions and to have the decisions reached be voluntary ones.

It is both fair and important for people who seek the services of a mediator to make inquiry about the ethical guidelines that frame a mediator’s practice. It’s also appropriate for people making referrals to mediation to ask these questions. I suggest guidelines are not merely the published guidelines of a mediation organization. They also include self-determined and self-directed guidelines that evolve from a mediator’s self-assessment of skill and capacity. It requires an understanding that is bounded by the integrity of a mediator who is clear about his or her competency to work in particular situations, especially those that are high conflict. It requires a mediator who is willing to say ‘no.”

Working with high conflict people requires skill that goes well beyond facilitating a conversation. Some mediators do it well and some should never try. If a mediator sees it as his or her responsibility to make a fair assessment about competency in this regard, everyone is well served – clients, mediator and the system, itself.

                       

Ann Begler

Ann L. Begler is the founder and principal of the Begler Group, a Pittsburgh firm providing services in mediation, advanced facilitation, conflict coaching and organizational development. Her work has supported major and lasting shifts within intimate systems such as closely-held businesses and professional practices; healthcare institutions dealing with adverse events… MORE >