Managing HCPs in Civil Litigation

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© 2015 John C. Edwards, Esq.

It is expected and understood by most people in the legal profession that because of the intensely personal nature of the issues that come up in family law, many if not most cases in Family Court will be driven by High Conflict Personalities (HCP’s.)  What is not so expected and understood is that the same personality driven conflicts that generate high conflict family law cases are the driving force behind much of the civil litigation that the courts and mediators see today.

Lawyers are well trained to spot and analyze legal and factual issues, and then to achieve their goals by persuading others to see and understand the facts and law (the issues) as they have analyzed them.  In my years as a trial lawyer and early years as a mediator, and before I understood the nature of High Conflict Personalities, I was frustrated by those cases in which legal reasoning and logic, the stock and trade for a lawyer, seemingly meant nothing.  I couldn’t get my point across, but I kept trying, as if saying it over and over again it might somehow sink in.

In other cases, lawyers resort to high pressure tactics and threats in order to convince the other side to capitulate.  Although this tactic may be effective in some cases, with HCP’s it often drives them in the other direction.

Now I know that with HCP’s the “issue” is not the issue, the personality is the issue, and I also know that in the context of a mediation, that personality is not going to change. In civil litigation mediations, I am often asked or “tasked” with making someone understand a certain reality.  Legal arguments are made and repeated, but usually to no avail.  The lifelong pattern of thinking and behavior that dominates the HCP personality is not going to change in the limited time allotted for a mediation!

The HCP in a non-family law civil case is no more likely than an HCP in a family law case to have insight into his or her own behavior as the cause of a problem.  The life-long enduring pattern of blaming others for all of life’s difficulties (which may very well have been the reason why the case is in court) is not going to disappear because of some well-crafted legal reasoning.

Although any case in civil litigation is likely to have one or more HCP’s, in my experience there are certain types of cases in which I am very surprised if there are no HCP’s.  Probate and Condominium Association cases particularly come to mind.  When fights break out among siblings after the death of parents, or when homeowners feel that their rights to enjoy their property are being infringed, it is almost always the case that the “issue” is the personality as opposed to a complicated legal issue.

If we aren’t likely to resolve the conflict by legal reasoning and persuasion, and if threats don’t work, what can be done?  Most importantly, we must remind ourselves what we shouldn’t do.  First and foremost, remember that HCP’s are not logical thinkers and they do not respond well to negative feedback, therefore we must resist the urge to admonish or even advise them.  Also remember that the HCP’s behavior is fear driven, which may lead them to want to fight.  We don’t want to fight, but if we feel like we are being attacked, we have to remind ourselves that this isn’t about us, its about the HCP’s inability to manage his or her emotions.

The most important skill for those of us dealing with an HCP is to establish and maintain a connection with the HCP.  How we communicate, both with what we say and how we say it is critical.  With a connection to the person, we can begin the process of looking forward to a reflective discussion wherein possible consequences can be considered along with possible resolutions.  Without a connection, we are likely doomed to the endless cycle of defensive thinking and behavior that characterizes the HCP mindset.

One of the most effective skills that can be employed to interrupt the HCP’s need to defend themselves and assign blame to someone else, is to allow their version of the case to go unchallenged.  With no challenge to their version, it is less likely they will have a need to defend.  Not challenging is not the same as agreeing, there is no need to do that either.  Respectful, empathetic listening goes a long way.  “You might be right” are powerful words in this setting.

Our goal is to turn the focus on the past into proposals to resolve the issue before us today.  When a person concentrates on the future, they won’t be stuck in the past.  The past is about blame, the future is making choices.  Most HCP’s have the capacity to solve problems when they are not stuck in a reactionary state of mind that makes them feel they have to fight.

It’s actually pretty simple to get the HCP to make a proposal for resolution, just ask.  If you have prepared for the mediation by explaining to all the parties at the outset of the proceeding that your focus will be on making proposals for resolution instead of hashing over the past, they will be “primed” so that when the time comes to make one, they won’t be surprised.  By this part of the process, you should have developed a connection with this person.  You have been respectful and empathetic, no matter how extreme their position or behavior might be.

Getting a proposal, of course, doesn’t guarantee resolution.  The cycle of blame often begins again once the initial proposals are exchanged.  Do not despair, because once again you will have the opportunity to focus on the future, not the past.   With empathy and respect, just ask the party to focus on a new proposal and forego criticizing the other party’s proposal.  It’s not uncommon for the parties to get stuck at this stage.  Early in my career, I felt it was my responsibility to settle the case and that therefore if the parties were stuck I had to take over and make something happen.  Now, I have learned that sticking to the process and letting go of the outcome is more likely to lead to successful outcomes.

No matter how wedded to the conflict the parties appear to be, at some level of consciousness they usually want the case resolved.  I have done my job if I have given them enough empathy, attention and respect to help them calm down and enough information to help them understand their BATNA (Best Alternative to a Negotiated Agreement). If, after all my efforts,  they come to a rational, logical conclusion that they are better off continuing in court, then that is what they should do.  It’s their case, it’s up to them. But from my experience with these methods, most HCPs in civil litigation and mediation respond enough to engage their logical brain in making proposals and reaching agreements, so that they do not need to head back to court.

Learn more: It’s All YOUR Fault! 12 Tips for Managing People Who Blame Others for Everything

John C. Edwards has been practicing law, primarily in civil litigation, since 1977. He specializes in commercial and residential real estate matters; and professional malpractice, personal injury, employment disputes, probate and business disputes. John earned his J.D. from the University of San Diego Law School and received his mediation training at Harvard Law School. He is an in-demand presenter with the High Conflict Institute.

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