The Mediator’s Role in Decision Making

©2017 John C Edwards, Esq. In a previous article, I wrote about the importance of leaving the critical decision making up to the parties to a mediation, especially if the party has a “high conflict personality.”  (I will refer to people with a high conflict personality as an HCP.)  As a mediator, my goal is not to make decisions for the parties, rather it is to help create an environment that allows the parties to be reflective, logical and thoughtful in their approach to conflict resolution and decision making as opposed to reactive, persuasive blaming that almost never solves the problem at hand and frequently leads to escalating conflict. It’s important to allow HCPS to make their own decisions for a number of reasons. HCPs typically suffer from cognitive distortions which lead to a preoccupation with blaming others, all-or-nothing thinking, and unmanaged emotions which lead to extreme behaviors. They do not respond well to being told what they should or must do.  One of the hallmarks of HCPs is the utter absence of insight, so therefore they do not respond well to advice, admonishments and threats, and even if they are induced into accepting a resolution that they feel has been forced on them, there will likely be negative consequences in the future. Catch the HCP’s EAR At the High Conflict Institute we have been educating professionals dealing with HCPs in legal disputes to build connections with HCPs by communicating with Empathy Attention and Respect (EAR®) and by focusing the HCPs on taking their concern about the past and making proposals for the future.  Focusing on the future can interrupt the cycle of high conflict thinking and blaming and help put the HCP in a mental state more conducive to logical productive decision making. I have come to realize that helping create an environment for logical decision making is perhaps a mediator’s most important task, even in cases in which the parties are not HCPs.  As a mediator, I am most assuredly not a decision maker, but I am very much in a position to be a decision “influencer.”  Using EAR® is always important, but can I and should I be using other tools and techniques to help influence parties to make decisions to resolve their conflicts at mediation? The Issue Is Not The Issue In his fascinating, influential book “Thinking, Fast and Slow” (2011. New York, Farrar, Strauss and Giroux), Daniel Kahneman, Professor of Psychology Emeritus at Princeton University and winner of the Nobel Prize in Economics, explains the profound effect of cognitive biases on human decision making.  In the everyday world that I inhabit (civil litigation mediations) I am continually astounded by the decisions made by people that are not economically rational, and that are often based on intuition and anecdotal evidence, and I am not limiting this to HCPs.  Although cognitive distortions may be at the heart of HCP behavior, everyone has cognitive biases, and these biases profoundly affect our decision making. A thorough examination of “Thinking, Fast and Slow” and how it addresses the processes involved in human decision making is beyond the scope of this brief article, but one of the key points describes a “puzzling limitation of our mind: our excessive confidence in what we believe we know, and our apparent inability to acknowledge the full extent of our ignorance and uncertainty of the world we live in.” In civil lawsuits this manifests itself in an overconfidence in what will be the likely outcome of a trial and underestimates the role of chance in events.  When each party assesses their chances of winning at 75%, we know they can’t both be right, and more likely than not, neither are right.  When faced with this dilemma, I know that it serves no purpose to argue or attempt to persuade either or both that the analysis they have come up with is wrong.  After all, who am I to predict the likely outcome? Priming for Decision-Making Numerous psychological experiments have confirmed the powerful effect of priming on the human mind in the context of behavior and especially decision making.  Priming occurs as a result of our associative memory, in which each idea is linked to many others.  Many civil litigators think of priming only in the context of numbers, which leads to the typical negotiation over money wherein the plaintiff demands $1,000,000 for a case with an expected value of $200,000 and the defendant offers $5,000.  Priming effects, however, take many forms, and are not restricted to concepts and words. There are many examples of this that can be found in Thinking, Fast and Slow, as well as in a new book I have found to be very helpful, PRE-SUASION, a Revolutionary Way to Influence and Persuade (2016. New York, Simon and Schuster) by social scientist Robert Cialdini.  Cialdini explains how the best communicators capitalize on “privileged moments for change” in which audiences become receptive to a message before they receive it.  To change minds, we must first change “states of mind.” We know how important this is with HCPs, but the revelation for me is how important this can be in any case.  My goal is not to alter the party’s attitudes, beliefs, or experiences (after all, mediation is not therapy) but rather it is to channel the party’s focus of attention just before requesting a relevant action.  Cialdini provides a great deal of scholarly work that demonstrates that savvy communicators who learn this skill can increase the chances that the message they send will be accepted.  I think that is a great skill every mediator should attempt to learn. Resources: High-Conflict People in Legal Disputes John Edwards, Esq., earned his J.D. from the University of San Diego Law School and received his mediation training at Harvard Law School. After years of litigation, he began his mediation practice here he has successfully mediated hundreds of cases. Contact us about reserving John for your speaking or training needs: info@highconflictinstitute.com.

Splitting America

© 2012 By Bill Eddy, LCSW, Esq. and Don Saposnek, Ph.D [The following is an excerpt from the new book “SPLITTING AMERICA: How Today’s Politicians, Super PACs and the News Media Mirror High Conflict Divorce” by Bill Eddy and Don Saposnek (HCI Press, 2012). Something nasty is happening in America. Have you noticed the trend? There’s more bullying, more incivility, more disrespect and even more relationship violence between us at home, at work, in our communities and in the news. And, it seems to be increasing rather than decreasing. We have noticed a pattern to this behavior that is all too familiar. It generally includes: Personal Attacks (calling the other person crazy, stupid, immoral or evil) Crisis Emotions (which trigger fear and hatred of each other) All-or-Nothing Solutions (which call for the elimination or exclusion of the “other”) Narcissistic Behavior (acting superior and not caring about anyone else) Negative Advocates (constantly recruiting others to join in this hostility) We are well-acquainted with this pattern in high-conflict divorces, and it’s not good. This behavior is called “high-conflict” because it increases the conflict, rather than reducing or resolving it. Worst of all, it’s contagious – it spreads when people are exposed to it, like a virus. This behavior results in a state of mind called “splitting” – the psychological term for truly believing that certain people are absolutely all-bad and others are absolutely all-good, with no gray areas in between (Millon, 1996). This might not seem like a serious problem, except for the fact that the spread of splitting leads people to stop speaking to each other, to hate each other and, sometimes, to be violent with each other. It also distracts us from solving real problems. We are now concerned that this behavior is spreading into politics at all levels. Today’s Leaders Recently, political leaders in both parties appear to be adopting and escalating high-conflict behavior, and perhaps, even leading it. Millionaires and billionaires are funding expensive ads as key elements in high-conflict election campaigns. And, the news promotes high-conflict behavior in every broadcast – to children as well as to adults – by relentlessly showing, and thereby teaching, the most dramatic bad behavior of the day. We believe that the politicians, donors to Super PACs and the news media don’t seem to realize how destructive and self-destructive this escalation of high-conflict behavior can be. We would like to warn them and the rest of the nation about the dead-end nature of this unrestrained behavior that knows no limits. We have seen splitting destroy too many families, and we don’t want to see it destroy the American family. We want to avoid a Democrat-Republican high-conflict divorce. In approaching these problems, it’s not about pointing fingers and deciding who is more at fault. It’s about everyone taking responsibility for his or her own behavior, and managing collaborative relationships, even when we disagree. Who Are We, and Why Did We Write This Book? We are a psychologist and a family law attorney, each who has worked with divorcing families for over 30 years. And, we both are family mediators – we meet with divorcing couples and help them calm down and work together for the sake of their children and their own futures. We are not politicians or political scientists, but we have learned ways of calming high-conflict families and helping them work together peacefully, for the sake of the children and their parents’ future lives. At a recent conference on high-conflict divorce, we discussed how much the dynamics of the current elections mirror high-conflict divorce. The closer we looked, the more similar these dynamics appeared. In fact, to both of us, the parallels are striking, and the solutions may be too. We thought it would be worth a try to analyze this and come up with some suggestions for how to change the destructive direction in which we seem to be headed. This book is our small effort to calm this conflict. How Similar Are High-Conflict Divorce and High-Conflict Politics? Reports from The Wall Street Journal (Thernstrom, 2003) and from family court judges (Brownstone, 2009) indicate that high-conflict divorce is on the rise. But, some of the most powerful reports come from children who grew up in high-conflict divorce situations and who are now adults. Constance Ahrons (2004) interviewed over one hundred children during the divorce, and 20 years later. The following are typical comments reported: Travis, fourteen and the middle child of three, lived with his mother weekdays and spent several weekends a month with his father. It’s the old thing – they were playing the kids against each other. You would hear a story from one and then get another story from the other, and you would never know for sure who is closer to the truth than the other. Now, as an adult I have learned to take everything with a grain of salt, and see where it is planted here and there. His younger sister also felt caught in the cross fire: It made me really mad. I would have to try to keep my mouth shut to not upset the other. I had to really watch what I said when I was with either one of them, because—for example, if I would mention my father while I was with my mother, that would really set her off. Unfortunately this resulted in her distancing herself from both parents. “I don’t remember ever having this feeling like, oh, I can’t wait to see my dad or mom now. I really miss them! Instead, it was always a relief to get away from the other (p. 80). Notice how the children were turned off to both parents, because of their high-conflict behavior. But of course, politicians wouldn’t act this way, would they? More recently it seems that they are acting in very similar ways. On the first floor of the Capitol, there is a private dining room for senators, the “inner sanctum,” where Republicans and Democrats used to have

Megan Hunter Guest Blog: Family Vacation: From the outside, all appears normal. From the inside, it’s been a different experience.

© 2012 By Megan Hunter, MBA I’m on a 10-day vacation sailing through the British Virgin Islands.We’ve reached day seven with only a few mishaps like engine trouble, broken sail, jelly fish sting and an injured foot. It’s a family trip to celebrate the 50th birthday of the youngest of 4 brothers, each of whom have celebrated with big family birthday trips. From the outside, all appears normal. From the inside, it’s been a different experience. A bit like a kid caught in a high-conflict divorce. I’m imagining the confused look on your face about now. Let me explain. My husband and I started on Boat 1 with one brother and his family. Halfway through the trip we switched to Boat 2 to give one of the other brother a chance to sail on the big 50-foot catamaran. While on Boat 1, we heard a continuous and consistent negative message about the family on Boat 2. And it wasn’t just the parents doing the bad-mouthing, all three children in their early 20’s joined in the bashing. While we knew the animosity previously existed, until spending several days living with them we had no idea how deep it went. We expected big family parties playing cards and games together, fixing meals jointly, diving together, etc. It’s been very different and very clear that Boat 1 wants nothing to do with Boat 2 which leaves one wondering why on earth they invited anyone at all on their birthday trip.  Boat 1 made fun of the son on Boat 2 for his pain from a jelly fish sting. They purposely and intentionally tried to lose Boat 2 or fail to tell them where we would meet in the evenings. It went on and on. Now we’re on Boat 2 and I can tell you that we felt a huge wave of relief. I woke up this morning with the realization that we are in the same exact position as a child caught between a parent who bad mouths the other parent in front of the child and the other parent who is confused and just wants everyone to get along. In Bill Eddy’s book, Don’t Alienate the Kids, he talks about this “splitting” wherein the high-conflict parent “splits” everyone into all good/all bad categories and then builds a contingency of negative advocates with their persuasive toxicity. The high-conflict person on Boat 1 has turned her family (all good) against Boat 2 (all bad). Sadly, her children probably couldn’t even give a rational explanation about their distaste for Boat 2 – just like a child who has been alienated from the other parent. There’s no rational basis. I find myself just wanting to get the kids separated from their parents for a short bit to spend time with Boat 2, just to break down some walls. Boat 2 is wondering if they have done something wrong or if they’re perceiving things incorrectly. Plain confusion. So, my husband and I have felt just the tip of the iceberg of what a child feels in this situation. Anxiety, stress, stomach aches, fear and we want to “fix” it. Our experience, age and wisdom give us some control, significantly more than a child in this spot, but we still feel badly. Tonight we have to move back to Boat 1, but things are different now. We already feel the wall of alienation simply because we are having a good time with Boat 2. If you see even a glimpse of yourself in Boat 1 in relation to your kids, stop doing it. The kids feel nothing but stress over and over again. At least we only have to endure this for brief time. And they grow up with a rigid view of people and an inability to adapt to the differences in people. Kids deserve the chance to fairly know both parents. Back to vacation… Co-founder Megan Hunter is a speaker,  author,  and international expert on high conflict disputes, complicated relationships, and Borderline Personality Disorder. She has over 13 years’ experience as the Family Law Specialist with the Arizona Supreme Court, and Child Support Manager of the Dawes County Attorney’s Office in Nebraska.