Managing High-Conflict Personalities in Mediation (Practical Tips for Families)

Managing High-Conflict Personalities in Mediation (Practical Tips for Families)

I. Introduction

Any good family lawyer will advise that parties to family disputes following separation or divorce should make every reasonable effort to resolve the matter by agreement, rather than via contested court proceedings. Contested court proceedings are expensive, time-consuming, and extremely stressful. They should therefore be avoided if at all possible.

Of course, it is not always possible to reach agreement via negotiation with the other party, whether by communicating with them directly, or through solicitors.

And that is where Family Mediation can help. Family Mediation involves the parties agreeing to refer the matter to a trained mediator, who will help them try to reach a resolution by agreement.

But obviously mediation requires the full cooperation of both parties for it to be successful. What if the other party is a high-conflict personality? Does that mean that the mediation is doomed to failure?

Not necessarily. The good news is that mediation can work with high-conflict situations. But to make it work may require the use of special strategies.

In this article we will examine ways to manage high-conflict personalities in family mediation, to give the mediation the best chance of success.

II. What is a ‘High-Conflict Personality’?

Before we proceed, we should first explain exactly what we mean by a ‘high-conflict personality’.

It has been suggested (by Bill Eddy, LCSW, the co-founder and Chief Innovation Officer of the High Conflict Institute in San Diego, California) that there are four primary traits of the high-conflict personality:

• Blaming Others: High-conflict personalities tend to be preoccupied with blaming other people when things don’t go their own way. This can mean that they can focus upon blaming someone else, and find fault with everything that person does, even though it may be quite minor or non-existent compared to their own behaviour. Meanwhile, they can see no fault in themselves, and view themselves as free of all responsibility for the problem.
• All-Or-Nothing Thinking: High-conflict personalities can see things only in black-and-white, with no middle ground. Either a solution to the problem is completely in their favour, or completely against them. This can obviously be an issue when the essence of mediation is compromise.
• Unmanaged Emotions: High-conflict personalities tend to have great difficulty in controlling their emotions (fear, anger, disrespect etc.), which can be extremely intense, and can completely take over their thinking.
• Extreme Behaviours: Lastly, high-conflict personalities can often exhibit extreme behaviours, particularly when they lose control of their emotions. Extreme behaviours can include such things as making threats if you don’t agree with them, and even physical abuse.

III. Understanding the Legal Framework

• The MIAM Requirement: Subject to certain limited exceptions, anyone wishing to make an application to the Family Court must first attend a Mediation Information and Assessment Meeting (‘MIAM’). The purpose of the meeting is to provide information about mediation, and to assess whether the case is suitable for mediation. Of course, a case involving a high-conflict personality may be considered to be unsuitable for mediation (especially if there has been domestic abuse) but, as we will see, that does not have to be so.
• The Court’s Stance: Mediation is purely voluntary, but the court has long encouraged the use of mediation, or other forms of non-court dispute resolution. Indeed, the court a duty to consider, at every stage of the proceedings, whether non-court dispute resolution is appropriate. And whilst the court cannot compel parties to use non-court dispute resolution, it can require them to set out in writing their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings. It can also use the timetabling of proceedings to encourage non-court dispute resolution. Lastly, the rules provide for the court to consider as a matter of conduct, when determining whether to make an order for costs in financial remedy proceedings, any failure without good reason of a party to attend a MIAM, or to attend non-court dispute resolution.
• Legal Advice During Mediation: It is important to understand that anyone going through family mediation can consult their lawyers for advice, at any point throughout the process. This can be especially relevant in cases where the other party is a high-conflict personality.
• Alternative Mediation Models: Lastly, it should be borne in mind that there are various mediation models, some of which could be particularly useful in cases involving high-conflict personalities. For example, in Shuttle Mediation the parties are in separate virtual “breakout rooms”, or on separate calls, and the mediator moves back and forth between them to convey proposals and positions. This is particularly useful in high-conflict situations, or when the parties prefer not to be in the same “room”, even virtually.

IV. Preparing for Mediation

There are things that you can do to prepare yourself, both practically and emotionally, for high-conflict mediation, including:

• Don’t Try to Change Them: Tempting as it may be, it is not a good strategy to try to change the high-conflict personality, or to persuade them of the error of their ways. You will not succeed. Remember, their behaviour is about their own defensiveness, not a reflection on you. And what ever you do, do not tell them that they have a high-conflict personality!
• Avoid Arguments: By the same token, avoid getting embroiled in arguments with the high-conflict personality, no matter how strongly you disagree with what they say. Arguing only fuels the conflict cycle.
• Focus on the Future: Remember always that the mediation is about the future, not about the past. The past cannot be changed, the future can. To this end, prepare a simple, fact-based proposal for the future, whether it be about finances, arrangements for children, or both.
• Concise Communication: Lastly, keep all written/verbal communication short, factual, and strictly limited to the issue at hand. Don’t bring up matters that are not relevant to the issues at hand – your solicitor will be able to advise you what is, and what is not, relevant.

V. Practical Strategies During High-Conflict Mediation

The following are some practical strategies that you can use once the mediation process begins:

• Consider Shuttle Mediation: As already mentioned, consider the use of shuttle mediation, so that you and the other party are not both physically present in the same room during the mediation meeting. This can reduce the opportunities for the other party to engage in conflict.
• Use the Mediator as a Funnel: The mediator is trained to interrupt attempts by either party to attribute blame, to manage extreme emotion, and to refocus the agenda. Trust them to set limits.
• Try to Calm Them: Rather than confront the high-conflict personality, try to diffuse tension by calming them. This can be achieved by showing them that you are listening to them, and that you understand and respect what they are trying to do, even if you disagree with them. This approach can quickly de-escalate conflict.
• Setting and Holding Boundaries:

1. Agenda is King: Insist on a written agenda. When the high-conflict personality tries to digress into the past or personal insults, calmly refer back to the agenda items
2. Time Limits: Adhere strictly to session time limits. Use planned breaks to gather composure.
3. Consequences (Indirect Confrontation): Instead of criticising the high-conflict personality’s behaviour, focus on the external consequences of their rigidity, for example by reminding them that if agreement cannot be reached then both of you could face the prospect of expensive court proceedings.

• Dealing with Financial Distortion: High-conflict individuals often distort facts, particularly when it comes to finances. This can be addressed by using an Open Financial Summary, detailing all assets, liabilities, income, and expenditures for both parties. This factual record can be used to “reality-test” the high-conflict personality’s claims.
• Prioritising Child-Inclusive Mediation: If the mediation is about arrangements for children consider Child-Inclusive Mediation, where appropriate (i.e. where the children are older – say, 10-plus). In child-inclusive mediation the mediator can speak to the children directly, giving them a voice, and an opportunity to share their worries and concerns. This can provide a child-focused perspective, that can cut through parental conflict.

VI: After Mediation: Securing the Outcome

If the mediation is successful (and family mediation generally has a 70-80% success rate) then you will want to ensure that the outcome is final and binding. In this connection two things are particularly relevant:

• Memorandum of Understanding: If agreement is reached between the parties in mediation, then the mediator will prepare a written ‘Memorandum of Understanding’, setting out what has been agreed, whether it is about finances or arrangements for children. Whilst the Memorandum is not legally binding, having the agreement documented means that both parties are more likely to follow through with its terms. The Memorandum also reduces the likelihood of disputes down the road.
• Consent Order: If the agreement related to financial arrangements on divorce, then the terms of the agreement should be incorporated into a consent court order. The order ensures that the terms agreed are final, and that they can if necessary be enforced by the court. The order will be drafted by a solicitor (using the Memorandum of Understanding), and can usually be obtained without the necessity of an attendance at court.

VII. Conclusion

To briefly summarise, success in high-conflict mediation is about managing your own actions and reactions, not trying to confront or change the high-conflict personality.

And obviously it is essential that you use an accredited family mediator with the experience to handle high-conflict cases. Our Managing Director Ian Walker is a very experienced mediator, having trained in 1996. He is also accredited by the Family Mediation Council and the Law Society.

For more information about Family Mediation, and the service we offer, see this page.