When Helping Hurts – How Professionals Become Negative Advocates – Or Not

wrapping bandaid on finger

©2017 by Bill Eddy, LCSW, Esq. Most professionals are helping professionals. We like to help our clients as lawyers, mediators, therapists, arbitrators, social workers, human resource professionals, financial professionals, healthcare professionals, educators, administrators and others. We want to help people accomplish their goals, using our professional skills. Often, in order to help someone in a dispute or difficult situation, part of our work is to advocate for a client in dealing with one or more other people. But when a client has a high conflict personality, there is the risk that this drive to help can go off the rails and become distorted. Inadvertently, we may help the person stay stuck in their dysfunctional behavior; and inadvertently we may hurt others who have become their “targets of blame.” When this happens, we become “negative advocates” for a high-conflict person (HCP), by advocating for their negative behavior, negative thinking and negative emotions, much like a co-dependent “enables” an alcoholic or addict. (For information about high-conflict people, see: High Conflict People in Legal Disputes or BIFF: Quick Responses to High Conflict People) When a professional becomes a negative advocate, he or she may be much more persuasive than the HCP and may make the situation much, much worse. In my experience over the past 30 years as a lawyer, mediator and therapist, most prolonged high conflict disputes involve at least one HCP and one professional who has become a negative advocate for the HCP.   Helping an Individual Client Sometimes, a professional becomes outraged with the other party in a high-conflict divorce (or other dispute), who the professional has never met. The client’s stories of the other person’s bad behavior (abuse, false allegations, alienation) may be so emotionally upsetting that the professional soon tells the client: “That’s horrible! You must divorce her.” Or: “You must go to court and get restraining orders!” Or: “I will send a letter or affidavit to the court saying how bad the other party is.” All of these statements may go beyond the scope of the professional’s role. Sometimes, the client may actually be an HCP, whose perceptions are distorted and who misinterprets or generates “emotional facts” which do not exist in reality. People with high-conflict personalities or personality disorders often look good on the surface (smart, attractive, friendly, etc.), but under the surface, they are abusive, alienating and/or make frequent exaggerated or false statements. HCPs are preoccupied with blaming others and have a lot of intense emotions. This can confuse the listener, especially one who is sincerely trying to help a client. The listener can become “emotionally hooked,” totally believing what the client says and totally absorbing their fear and anger. If the professional is saying all of these advocacy statements without ever meeting the other party or having any other outside confirming information, the professional may be “enabling” a high-conflict person. In some such cases, the professional’s “zeal to help” reinforces distortions on the part of an upset client – and that client takes legal actions that eventually backfire. In some extreme cases, a professional has lost credibility and been sanctioned for vigorously promoting allegations, which were found to be false. For example, sanctions were awarded against two attorneys in one case for $3000 each, paid to the court, for becoming negative advocates (although that term was not quite used): “An inference of willingness to assist Mr. Kwong’s harassment of Ms. Gong and to abuse the court’s processes could be drawn from his counsels’ sophistry and their litigation tactics, which went beyond proper advocacy and common sense. An attorney in a civil case is not a hired gun required to carry out every direction given by the client….” In re Marriage of Gong and Kwong (2008) 163 Cal. App. 4th 510, 521. Emphasis added.   Helping Clients as a Neutral Mediator, Arbitrator or Evaluator In Mediation A mediator may have a case in which one party is extremely upset and tells the mediator that the other party is hiding money. “I know she is! You have to do something about this!” This emotionally upsets the mediator, who turns angrily to the alleged guilty party and tries to persuade her: “Can you bring some proof of your income? Can you bring your accountant to the next meeting?” The problem is that the mediator is now emotionally hooked and emotionally implying that the alleged guilty party IS responsible for this problem, without any other source of information and without any skepticism toward the first party’s complaint. The mediator no longer feels impartial to the parties – the mediator feels like an advocate to the first party and feels like an adversary to the second party. In Arbitration In contrast to a mediator, an arbitrator is the one who makes the decisions. However, in making the decisions it is essential that the parties feel that they have been treated as equals in the process and received the full benefit of an objective process. Sometimes an arbitrator becomes a negative advocate for one side and suddenly becomes hostile to the other party. Then, either verbally or in writing, the message comes through clearly that the arbitrator has totally accepted and favored one party and totally disregarded and disliked the other party. When that comes through, the arbitrator has become a negative advocate for the one and treated the other like a target of blame. Then, the targeted person complains informally or formally about the arbitrator and the arbitrator’s reputation and the arbitration process is tarnished. In Evaluation Evaluators are becoming more common in legal disputes, to assist the court in understanding the depth of the case, especially in cases in which psychological or other specialized knowledge is helpful. Evaluators are supposed to be neutral, but during the process their analysis of the case often involves favoring one side or the other, which is appropriate if the information supports that conclusion. But this should remain at all times an objective process. If the evaluator becomes emotionally hooked and suddenly