Key Principles for Asking Questions in High Conflict Cases

©2023 Bill Eddy, LCSW, Esq.

High conflict cases usually involve allegations of very bad behavior, debates over who is acting badly, and what should be done about it. They become high conflict because: facts are few, emotions run high, more and more people become involved (who are often emotionally hooked but uninformed), and two opposing sides emerge. The dispute escalates and prolongs without resolution. This can occur in families, in divorce cases, in the workplace, in communities, online, in the political world, and certainly in legal disputes. High conflict seems to be increasing.

These cases usually include at least one high conflict person (HCP) who tends to distort information, sees things in all-or-nothing terms, may have difficulty managing their emotions, and tends toward extreme behavior that most people would never engage in. These cases also tend to involve at least one professional who becomes a negative advocate for an HCP.

This article addresses questions that all professionals should ask so that they don’t become negative advocates and so that they can calm down and ethically resolve high conflict disputes with knowledge and compassion.

Professionals as Negative Advocates

Negative advocates get emotionally hooked by the extreme fear, anger, or blame expressed by HCPs and they believe the HCPs’ distortions of information. They are often persuaded to see the HCP as a victim of someone else’s bad behavior, when in fact the HCP is often the primary perpetrator of such behavior. HCPs get it backwards, then they may persuade others to get it backwards. Their negative advocates may have high conflict personalities themselves or may be relatively new professionals or susceptible to the emotions of high conflict people who can be very persuasive blamers. Therapists, mediators, lawyers, judges, human resource professionals, and others are often exposed to such high conflict people and need to be aware of this risk.

Negative advocates tend to jump to conclusions and pursue their solutions with an intense passion because they are emotionally hooked rather than fully and accurately informed. Yet professionals are (or should be!) trained to seek full and accurate information before reaching conclusions about what is going on and what should be done, while always keeping an open mind. Unfortunately, most professional training does not include watching out for the pitfalls presented by clients with high conflict personalities.

Starting with an Open Mind

Professionals (or any people) who get involved in a high conflict dispute should keep their mind open to at least three possible explanations or theories of the high conflict case, which look the same on the surface:

1. That one person or “side” in the dispute is in fact engaging in very bad behavior (Person A).
2. That Person A is not in fact acting badly at all, and the other person or “side” is (Person B).
3. That both people are acting very badly.

Such an open mind will prevent what scientific researchers call confirmation bias (see my article in our February 2023 High Conflict Institute newsletter). Confirmation bias tends to prevent people from asking open-ended questions and checking alternate theories of what is happening.

This “confirmation bias” is a well-known phenomenon in which more attention is paid to and there is better recall of information that is consistent with pre-existing beliefs. More weight is also given to evidence that confirms existing beliefs. Evidence and information that does not support pre-existing beliefs is discounted, forgotten, and taken less seriously. Nickerson has referred to confirmation bias as possibly the single most problematic aspect of human thinking because it is so powerful in preventing people from revising incorrect beliefs and assumptions. (Lorandos and Bernet, 217)

This is just as important for mental health and legal professionals as it is for scientific researchers.

Failure to remain open to alternative hypotheses that are believable (on the basis of prior knowledge) can pose serious risks to obtaining a scientifically adequate answer. This point is just as true for forensic investigators and therapists as it is for scientists. Failure to test an alternative to a pet hunch can lead interviewers to ignore inconsistent evidence and to shape the contents of the interview to be consistent with their own beliefs. (Ceci and Bruck, 80)

Young Children: Did That Really Happen?

Take, for example, cases involving children. Experts in interviewing children say that several questions should be asked, otherwise the results are unreliable. This was found in a major study of child sexual abuse allegations that sent day care center workers to prison for forty years in the 1990’s. Faulty interviewing techniques were determined to be the cause of their statements and not abuse (and the workers were released).

The interviewer does not challenge the child who provides abuse-consistent evidence by saying things like, ‘You’re kidding me, aren’t you?’ or ‘Did that really happen?’ The interviewer does not ask questions that might provide alternate explanations for the allegations…. When children provide inconsistent or bizarre evidence, it is either ignored or interpreted within the framework of the interviewer’s initial hypothesis. In short, interviewer bias can be found wherever an interviewer thinks he knows the answers before the child divulges them. Ceci and Bruck, 79-80.

Since that quote was published in 1995, interviewers have refined their questions to be less overtly challenging, focusing on offering alternative explanations.

Resistant Children: Alienation vs. Estrangement

A growing problem today is when a child resists or refuses contact with one of their parents during or after a separation or divorce. Is it because the child was abused by one parent or alienated by the other parent? This typically begins between about 8 and 12 years of age, as the child’s brain is going through dramatic changes and subject to intense emotional influences, such as an angry parent—which can push a child to resist that parent (realistic estrangement) or push a child to agree with the angry parent to calm them down (alienation) by joining them in disparaging the other parent.

In such situations, it is essential that the person evaluating these claims and interviewing the children is starting in a neutral position. For example, a professional who is primarily an advocate for abused children is likely to see the case as an abuse case. Or, a professional who is primarily an advocate for alienation is likely to confirm alienation. (When you’re a hammer everything looks like a nail.)

For example, Dr. William Bernet (who has proposed criteria for a Parental Alienation Relationship Problem diagnosis to the DSM-5 committee with substantial support) cautions that simply knowing that a child resists contact with a parent should not create a presumption as to the cause:

Any clinician who claims that all children who reject a parent are alienated or claims that it is possible to make a determination regarding whether a child is alienated based on the child’s behavior alone is failing to consider the total clinical picture and is therefore making a fundamental clinical error…. It is not sufficient to assume or infer that the [alienating] behaviors are occurring. They must be observed (through actions, attitudes, written statements, interviews, reports from collaterals, and so forth). Lorandos and Bernet, 215.

An evaluator must equally consider at least three possibilities in such cases: parental alienation, realistic estrangement, or a hybrid of both. (Essentially the three theories at the beginning of this article.)

Teenagers: Tell Me More

In many separation and divorce cases in family courts, child statements are taken at face value without further inquiry. For example, in a contested custody case a court-related counselor reported the following to the court from a single brief interview with a teenage old boy who ran away from his mother’s home to his father’s home after she temporarily took his cell phone away. The father chose not to return him or even call the mother, and went to court for sole custody instead—and got it!

Counselor: “He stated that he ran away from the mother’s home that night, stating that he had had enough of her behavior and insanity. He reported that the mother has historically been mentally abusive toward him, with them fighting all the time, never giving him any freedom, and with her attempting to fully control him.”

The mistake the counselor made is that he did not ask follow-up questions: “Tell me more. Can you give me an example of the ‘insanity?’ Of being ‘mentally abusive?’ Of the ‘control?’ Of ‘denying your freedom?’ And: What does the ‘sanity’ and ‘freedom’ look like in your father’s home? And: “Does your father use similar words to describe your mother?”

Often children under the psychological influence of a parent cannot describe anything extreme that would fit these dramatic and emotional statements. In this case, the teenager would probably have said his mother put his cell phone in “time out,” (which is a normal adolescent consequence for misbehavior), and that his father lets him stay up as late as he wants at night (which may explain why he falls asleep in class). Not asking such follow-up questions is a common, but devastating error in these cases and an example of the dangers of confirmation bias. Courts should not base decisions on such inadequate assessments, because isolating a child with a high conflict parent can expose the child to more psychological harm, not less.

Adults: Are You a Victim of Abuse?

Lawyers are often involved in legal disputes which may include concerns about domestic violence, sexual harassment, workplace bullying, and other abuse. In many cases, their client may be a divorcing spouse or employee and the focus of the case may be something else. However, it is essential for the protection of such clients to ask them questions about whether they have been abused. Many abuse victims/survivors don’t recognize that the behavior they have experienced is considered abuse. If you ask: “Have you ever been a victim of domestic violence?” they are likely to say “No,” even when they have experienced serious abuse.

Therefore, it is important to ask all clients specific questions: “Have you ever been hit, slapped, knocked down, choked, prevented from leaving your home, cut off from relatives and friends, denied access to finances or financial records,” and so forth. There are assessment tools (checklists) available for assessing domestic violence, for instance. (See our video series: “Conversations about Domestic Violence in Family Law Cases with 16 Experts” )

Couples therapists and mediators may need to assess for danger of interpersonal violence before conducting therapy or mediation with the parties. This is especially true in separation and divorce cases but sometimes also in high conflict workplace and business disputes. It is always recommended that this be done separately and that specific questions be asked, just like those above for lawyers. One of the leading lists of questions for family mediators is the MASIC: “Mediators Assessment of Safety Issues and Concerns.” Some mediators, especially with agencies and government programs, may use a written list, whereas some private mediators prefer to verbally ask questions and include follow-up questions.

Who Should Ask Which Questions?

Mental health professionals can be excellent investigators and evaluators of individual and family behavior. However, there should be one hat per customer. If someone is a therapist in a case, they should not be embarking on investigations. Likewise, a mental health professional serving as an evaluator or investigator should not be doing therapy in the same case. While a child or adult may make a spontaneous statement about very concerning behavior in a therapy session, the therapist should refer it to the appropriate government agency (such as for child abuse or elder abuse) for someone else to investigate. For counselors in separation and divorce cases, the Association of Family and Conciliation Courts (AFCC) has an excellent guide for Court-Involved Therapists.

Avoid Leading Questions

Leading questions may sound innocent, but they suggest the answer, usually in a Yes or No format. (Such as: “Is this a case of workplace bullying?”) The more helpful questions are open-ended questions that could be answered in several ways. (Such as: “Why don’t Mary and Fred get along?”)

For examples, therapists involved in counseling children can be tempted to become investigators but should not. In a highly disputed case of abuse versus alienation, a therapist who was supposed to be treating the child apparently went through a checklist of alienating behaviors and later said that the child “endorsed” several of them. Then the therapist recommended no contact for the mother until she reflected on her alienating behaviors and apologized. Yet this was a case of suggestive questioning and confirmation bias by a therapist who was not appointed as an investigator or an expert to be make recommendations (nor apparently trained to be a forensic evaluator).

Getting a History

In most high conflict cases, there is a history of high conflict behavior by one or both parties to the dispute. When information from each “side” is highly in conflict or behavior doesn’t make sense in the present, finding out prior patterns of behavior can help. Getting a history often brings the case into focus. In understanding mental disorders, this is essential, as described at the beginning of the diagnostic manual for mental health professionals.

The primary purpose of DSM-5 is to assist trained clinicians in the diagnosis of mental disorders as part of a case formulation assessment that leads to an informed treatment plan for each individual. The case formulation for any given individual should involve a careful clinical history and concise summary of the social, psychological, and biological factors that may have contributed to developing a given mental disorder.” DSM-5-TR, p. 21.

Hear from Several People

To get the most accurate picture of each person’s behavior in a high conflict dispute, it helps to get input from several people who may have been observers of one or both parties. Standards for evaluators of many different types often require them to gather information from several sources.

Usually, themes start emerging. For example, several people might say that the person is highly organized or highly disorganized, or very dramatic or very calm. It is often the side comments that help point toward what is really going on. “Did you know that his father died right before this conflict arose?” (High conflict people often become destabilized or emotionally dysregulated when a parent dies, a spouse leaves, they lose a job, or other loss of structure in their life occurs—and they take out their fear and anger on others around them.)

Conclusion

High conflict cases can be confusing and upsetting to many people. Rather than simply reacting to each other’s emotions, people need to stop and ask helpful questions. This article has pointed out the importance of several principles regarding asking questions which are often overlooked in high conflict cases because many people, including professionals, get emotionally hooked and lose their objectivity.

These questions need to be done with an open mind, considering at least three theories of the high conflict case in order to avoid confirmation bias. This brief look at this subject does not address all of the questions that should be asked in specific situations, but there are many well-developed instruments of questions that are available by subject area for those who look for them.

In brief, with children: Ask open-ended questions. Gently challenge statements by asking “Did that really happen?” Ask follow-up questions seeking more specifics: “Tell me more.” With adults who may have been victims of one form of abuse or another: Start with open-ended questions (“What’s going on?”). Then, ask more specific questions about the related nature of the alleged abuse: “Did _____ ever happen to you?” “Did _____ ever happen?”

To be most accurate, once it’s clear that significant questions need to be asked, make sure they are done by someone qualified to do so. Since many high conflict situations turn into legal disputes, evidence can be ruined or bad decisions can be made when important interviews are done by those not trained to do so. Avoid starting with leading questions, but when appropriate ask specific questions. Use multiple sources of information. And when in doubt, ask for help.

This will end with a very brief question for the reader: “Was this article helpful?” Feel free to write to info@highconflictinstitute.com and let us know. We value input from many sources.


References

American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2022.

Ceci, S.J. and Bruck, M. Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony. (Washington, DC: American Psychological Association, 1995.)

Lorandos, D. and Bernet, W., Parental Alienation: Science and Law. (Illinois: Charles C. Thomas Publisher, 2020.)


BILL EDDY, LCSW, ESQ. is the co-founder and Chief Innovation Officer of the High Conflict Institute in San Diego, California. He pioneered the High Conflict Personality Theory (HCP) and is viewed globally as the leading expert on managing disputes involving people with high conflict personalities. He has written more than twenty books on the topic and has taught professionals in the U.S. and more than ten countries.

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