Mediating High Conflict Disputes

© 2013 By Bill Eddy, LCSW, Esq.

When I was in Australia a couple weeks ago, one of my seminars focused on a new approach to mediating high conflict disputes – what I call New Ways for Mediation. After speaking to large groups for several days, it was great to have a full day with just 16 mediators and arbitrators with the IAMA of Victoria: Institute of Arbitration and Mediation Australia. It gave me the opportunity to discuss the paradigm shifts of this new approach, and then to give those present some practice exercises to really grasp how it works. Some of the paradigm shifts, which we discussed in depth, include:

1. No storytelling at the start: We don’t want potentially high-conflict parties to start out by telling us how bad the other party has been in the past. Instead, we want their thoughts and questions about solutions to the problems that brought them to mediation. This may include some information about the past, but not much. In other words, “Opening Statements” are discouraged to the extent that they focus on the past, on the other party’s “bad behavior” and efforts to persuade the mediator. With high conflict people, this simply reinforces their negative thinking and builds resistance to problem solving. We replace Opening Statements with “Initial thoughts and questions about possible solutions.” This builds momentum for keeping the focus on the future.

2. More work for the parties: One of the common dynamics of high-conflict people is a negative engagement in the decision-making process: They get others to make their decisions for them (judges, arbitrators and even mediators sometimes), then they criticize and undermine those decisions. So in New Ways for Mediation, we put the emphasis on four simple skills for the parties to use to be more engaged in a positive way and we reinforce these skills over and over again:   Asking Questions, Putting Issues on the Agenda, Making Their Proposals and Making Their Decisions. The emphasis is on making proposals. When they have a complaint about the other party, they are reminded to turn it into a proposal. When they criticize the other party, we ask them if it is a question or a proposal that they are trying to raise. By keeping them focused on these four simple skills, they work harder than high conflict clients usually do, when they blame and put responsibility on everyone else. Of course, this takes practice and patience on the part of the mediator. While it’s tempting to focus on asking clients many brilliant questions, it’s really better with potentially high-conflict people to take their energy and help them turn it into asking questions and making proposals themselves.

3. Less stress for the mediator: In order to help the parties work harder at this positive engagement, the role of the mediator needs to be more of a guide than dispute resolver. The mediator helps the parties resolve their own dispute – which is the standard idea of mediation. However, with high-conflict parties, it’s very tempting to suddenly work harder, asking them lots of questions, asking if the parties “can agree” to this idea or that, and trying to persuade them to be reasonable. Instead, in New Ways for Mediation, the mediator keeps putting it back on the parties’ shoulders, asking: “How would you respond to his/her proposal? Would that be a Yes, a No or I’ll think about it?” The mediator spends a lot of time educating the parties about their choices, what others have done and the consequences of each choice. But then doesn’t try to push the parties as much as guide them to making proposals, ask questions about proposals, gather information and make new proposals – until there is an agreement.

The mediators in Melbourne were very experienced, so that they had a lot of good questions, shared helpful experiences, and enjoyed shifting some of their efforts during the practice exercises. Overall, it was a very enjoyable and gratifying experience for me – and a nice way for me to spend my last day in Melbourne.

Bill Eddy is a lawyer, therapist, and mediator. He is the co-founder and Training Director of the High Conflict Institute, a training and consultation firm that trains professionals to deal with high conflict people and situations. He is the author of several books and methods for handling high conflict personalities and high conflict disputes with the most difficult people.

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