Three High Conflict Mediation Techniques That Work!

©2017 Shawn D. Skillin, Esq.

Some meditations are easy as pie and others are more like pulling teeth.  Here are three techniques that work when you feel more like a dentist than a mediator.

1.  Making Proposals:

Teach your clients how to make proposals in a simple but structured process.  Stick to the structure, after a while it becomes a rhythm.  They complain, you ask them to turn that complaint into a proposal.  This process was developed by Bill Eddy of the High Conflict Institute.    Here’s how it works.

Wife makes a proposal, Husband then asks questions about that proposal.  When his questions have been answered, Husband responds with “Yes”, “No” or “I need to think about it.”

If Husband responds with a “yes,” you have an agreement and you write it down.

If Husband responds with a “no,” he then makes the next proposal.

If he responds “I need to think about it” then have a discussion about how long he needs, and what additional information he may need to make his decision.  And agree on a time to resume discussion of this proposal.

When asking questions about a proposal, avoid the question of “Why.”  The why of it gets you in trouble, it often relates to different perspectives or values the clients don’t agree on and may never agree on.  Stick to who, what, where, when, and how.

2.  Reality Testing:

You’ve helped your clients brainstorm ideas, now it’s time to take each idea for a test run. Evaluate each idea with objective criteria.  Look at schedules, logistics, financial resources, cash flow and other relevant criteria.  Get out the calculator and do some math, better yet, get out one for each party and let them do their own math.  Evaluating ideas based on objective criteria helps keep you out of the “woods” and assists the clients in reality testing their own ideas.

3.  Caucus:

Separate meetings can be very productive. It can be a way of reality testing with a party in private to help them save face.  It can be a way to help move a party off of an entrenched position and help them to see a new possibility.  It may be necessary to drop the adversarial or hostile temperature in the room and act as a cooling off period.

The best caucuses are structured.  First, you take a moment to bond with the client, they need to trust you because you are about to ask some tough questions.  Do this by giving them your EAR™ — Empathy, Attention and Respect.  This can actually be quick and easy.  For example, “Wow, I can see this has been very challenging for you.  I’m here to listen and see if I can help you come up with a solution.  I really respect your willingness to work your way through this.”

Then you ask what they want from today.  Next is what are they willing to give, or give up, so they can get what they want.

Just remember whatever answer they give you is the right answer and then keep seeking answers.  It’s kind of like helping a teenager come to their own conclusions through strategic questioning rather than telling them what you want them to do. So just keep asking questions such as:

  • How would that work?

  • What would the other person think about that idea?

  • If he doesn’t like it what else could you do/offer?

  • What is it worth to get your way?

  • What if that doesn’t happen?

  • When do you think this should start?

Before you go back to a joint mediation room, make a plan for resuming the mediation.  Know what you want to accomplish as the mediator, how you will reboot the mediation, what will you say, who do you want to speak next, is there and offer to be made, by who and when. Caucus is a tool every mediator should have in their toolbox.  Just approach it with a plan.

Once you understand the three tips above, practice, practice, practice.  If one method does not work with a particular client, be ready with a different technique such as teaching them individual skills like the BIFF Response® or Talking to the Right Brain or conducting some Pre-Mediation Coaching. Mediation with a High Conflict Person – or two people – can be exceptionally challenging but it gets much easier and is more often successful when you have mastered the tools you need to manage the most difficult of clients.

Shawn D. Skillin is an attorney, mediator, international trainer and consultant at the High Conflict Institute. She is a senior mediator at the National Conflict Resolution Center and has a Family Law mediation and collaborative divorce practice in San Diego, CA. Additionally, she is a founding partner of the Family Resolution Institute. She is a popular and engaging speaker and trainer and she always gets rave reviews.


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