From Erica Becks’ Cure for the Common Conflict.
This weekend, I had the great privilege and honor to facilitate a workshop on the subject of Managing High Conflict Personalities in Mediation. While the training went very well, there were a few participants who voiced some concerns about the strategies we discussed. These were Attorneys who mediated Unlawful Detainer and Civil Harassment cases in a Court setting. They believed that, while the content was informative and relevant, they struggled with the question of whether or not there was a truly effective strategy for managing High Conflict People during short term mediations (Mediation sessions which had a duration period of about 45 minutes or less).
I too have had the exciting, albeit painful experience at times, of mediating Small Claims court disputes. To say that they are challenging is an understatement. These sessions test every mediating muscle in your body. In my experience, many of these types of disputes do settle, however, a large portion of them do not.
As a mediator, I take my rate of settlement quite seriously (okay, perhaps a bit too seriously at times), and when faced with the same no settlement verdict, day after day, I admit it’s hard not to become despondent. During my short tenure as a Small Claims Court mediator, I came to realize, however, that many of the frequent flyers in these courts, are of the same High Conflict breed as some of my other divorce and guardianship mediations. And such High Conflict people are often the reason underlying impasse.
So, just what can you do with High Conflict Personalities in 45 minutes or less? I decided to come up with a list.
1. Decisions, Decisions, Decisions: First and foremost, when faced with someone who you believe might have a HCP (High Conflict Personality) you must make a decision about whether or not to proceed with the mediation, and make it quickly you must. When making this decision, you might want to consider whether or not this person might be a) too volatile and unpredictable, thus making it difficult for you to guide them quickly down the path to settlement or b) too hostile and full of rage: if someone is screaming and yelling or cursing at you and/or the other party, despite being told not to, this is not someone who is settlement-minded or even has the ability to settle in less than 30-45 min. It would probably take you a significant amount of time just to calm them down. People often ask me, “Well, how long should I let it go on before shutting things down and sending them back to their hearing?”, I wish there was a hard and fast rule, but there simply is not. It is a personal choice. When pondering this decision, you might want to consider the following: How much are you willing to endure without becoming overwhelmed or too triggered? How much is the other party willing to endure at this point? Is the HCP’s behavior triggering the other party to act inappropriately as well? What is it that the HCP really needs, and I am going to be able to deliver that in X amount of time?
2. Stick to Your Guns: Once you make the decision to terminate, it is very feasible that the High Conflict behaviors might escalate or perhaps they will not. Regardless, if you’re besieged with a hellfire and brimstone speech peppered with expletives, do NOT, and I repeat do NOT back down from your decision to terminate the relationship. If you retract your decision, you will most certainly be perceived as ‘weak’ and easily manipulated in the eyes of the HCP. And this will place you in an even more precarious position if you choose to mediate with that party. If you do decide to mediate with them, make sure to set very strict boundaries with the HCP.
3. Stay in It For At Least a Minute: When any of us are subjected to extremely uncomfortable situations, we have the tendency to either fight or flight. In this instance, I am encouraging you to do neither. Since you’ve made the decision to stick it out, that means, you have voluntarily agreed to enter the battle zone. Some of the most incredible settlements I’ve witnessed, have arrived at the last hour, or in this case, the last 30 seconds. When dealing with a HCP, I often try to envision myself as a patient mother of an impatient two year old. No matter how many times you tell your child to stop doing x, y, z, you know that he will do x, y, z again. It is your responsibility to continue to hold his hand, no matter how much he squirms, gently reminding him of the ‘rules’ and following him around the room, watching him test them every step of the way. Once you can accept this role, things will run a lot more smoothly.
4. Settle It Swiftly: In time-crunched mediations, there is a significant amount of pressure looming over you to settle. And settle you will. Before the settlement is even finalized, I would begin writing it out on a piece of paper, repeating it back to the HCP. This decreases the chance that he or she will retract their decision or feign ignorance to what they have just agreed upon. Do not allow for any unrelated comments during settlement discussion. Be firm in re-focusing the HCP back to the task at hand. This is a very tenuous time, and one wrong statement from you or any other party, could trigger the HCP to regress back into their previous behaviors or dissolve the settlement agreement entirely. The moment you have the settlement agreement drafted and in hand, immediately shuttle the parties out of the room and back to the courtroom. I would discourage you from engaging either party in any dialogue during that time.
Now that you’ve received a few pointers, it is important to remember that these are simply guidelines. There is no ‘formula’ for dealing with these types of people or any ‘types’ of people for that matter. As mediators, we become experienced by trying on different hats and roles. Over time, anyone can become adept at managing HCPs, if they simply choose to get in the ring with them. Avoiding them all together or immediately terminating the session when you discover that one of the parties might have a HCP, does not do you or them any justice. Though they may be difficult at time, with the proper tools, HCPs are not impossible to manage. But more importantly HCPs do have the capacity to settle, if you can only help them tap into it.
Confidentiality has long been touted as a cornerstone of mediation practice in California. However, that may soon change due to a proposal to amend the Evidence Code protections for mediation...By Jennifer Winestone, Karinya Verghese