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Mediating High Conflict Workplace Disputes

Mediating High Conflict Workplace Disputes ©2019 Bill Eddy, LCSW, Esq. Many workplace disputes get resolved rather easily by those involved or by simple management interventions. Other disputes are more difficult and mediation is becoming an appealing method for resolving such disputes because it can be quick, confidential and empowering to employees. However, high-conflict workplace disputes can be more intractable, so that implementing mediation without adequate preparation may expose one or more employees to continuing abusive behavior by an employee or manager with a high-conflict personality. In these situations, more steps may need to be involved, as described below.   High Conflict People (HCPs) at Work High-conflict workplace disputes often arise when a manager is a bully, when co-workers have a unresolved personal conflict, or when an employee becomes bitter toward a supervisor or the whole organization. When such a dispute escalates or becomes prolonged, there may be one or more people with a high-conflict personality involved. We estimate that approximately 10% of the adult population has a high-conflict personality, which would be realistic for those in the workplace as well. It’s the personality that usually drives these conflicts, not the position that someone is in. However, the position can allow them to misuse their power or stay entrenched in the organization despite their high-conflict behavior. High conflict people (HCPs) tend to have four main characteristics: Preoccupation with blaming others (and not taking any responsibility themselves); All-or-nothing thinking and solutions; Unmanaged emotions; and Extreme behaviors. In the workplace, these behaviors often focus on an individual Target of Blame, but eventually spill over to the whole workgroup sooner or later. Yet most people don’t want to get involved, such that these high conflict behaviors may continue for quite a while unchallenged—simmering in the daily life of the organization and reducing morale. This is particularly true in healthcare, education and government organizations, which tend to attract nice people who don’t like to rock the boat by getting involved in other people’s conflicts. Yet there are myths that may keep the HCP in place for quite a while, such as the following two reasons:   The HCP May Be Productive Many high conflict people are very smart, hard-working and highly productive in the workplace. Their productivity numbers may be great. This tends to make co-workers and managers more hesitant to deal with them because of what they fear would happen if they left. However, research shows that this is a misplaced fear.[i] Generally the quality of “toxic workers” is lower and it is better for a company to remove them than to keep them and tolerate their disruption of the workforce.   The HCP May Have Special Skills or Knowledge Yet many toxic workers tend to last a long time in the organization because of their special skills or knowledge. This is common in healthcare organizations (surgeons who bring in large sums), educational institutions (famous professors), and high-tech companies (with their tech wizards). The most common approach is to tolerate them and try not to offend them by telling everyone else to walk on eggshells around them. Yet the same research shows that keeping a star employee is less beneficial financially than terminating them if they are a toxic employee unless the organization can “convert them into an average employee.”[ii]   Can This Employee Change? In two previous High Conflict Institute newsletter articles (Can High Conflict People Change? and Fire or Keep High-Conflict Employees?), the issue of high conflict personalities and change was addressed, but not in the context of mediation. Fundamentally, high conflict people tend to have traits of personality disorders, which means that they have an “enduring pattern” of social impairment.[iii] This implies that they do not change. However, with enough structure, support, and skills training in basic conflict resolution, many HCPs have been able to change enough to maintain their employment and become “average employees.” To successfully accomplish this, there appear to be three steps that can help, the last of which is the mediation process: 1) provide skills to the workgroup; 2) provide coaching to the employee; and 3) mediate any disputes with the dmployee.   1. Provide Skills to the Workgroup Since high-conflict workers have usually been tolerated for a long time and affected the whole workgroup, it can be helpful to provide training in basic conflict resolution skills to the whole workgroup. This is a no-blame, no-shame approach and workgroups find that they all appreciate the types of simple and practical skills that we provide as trainers for High Conflict Institute. There are several benefits of this type of workgroup training. First, all employees have some common tools they can use in dealing with issues within and outside the workgroup, such as our skills for calming upset people; making proposals to make good decisions; writing emails that are brief, informative, friendly and firm; and setting limits with compassion and consequences. Second, employees are pleased that they can use these skills in their personal lives with family, friends and neighbors. This is often what employees tell us after a training was the most valuable part as an employee fringe benefit. Third, the workgroup environment has often become involved in the ongoing disputes of the high-conflict employee, either as their Targets of Blame, negative advocates (reinforcing the HCPs behavior), bystanders (who overtly or covertly challenge the HCP), or avoiding the HCP. By learning shared skills, the workgroup can build momentum forward in using these positive skills rather than reinforcing negative behavior. Everyone knows the simple and practical skills that everyone should be using. Fourth, employees involved in a dispute can use these skills to resolve that dispute.   2. Provide Coaching to the Employee(s) Remember that high-conflict employees have a potentially enduring pattern of behavior, so that in order for this pattern to change the person will need more than simply participating in a group training in basic conflict resolution skills. In this case, it appears that specific coaching can help the individual learn and practice interpersonal conflict resolution skills through discussion, writing and role-play of difficult

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The 4 “Fuhgeddaboudits” in High Conflict Mediation

©2019 Bill Eddy, LCSW, Esq. Mediation with one or more parties with a high conflict personality requires a significantly different approach from the standard “interest-based” model that has led the field of mediation over the past 35 years. As of this year, I have practiced mediation for forty years and have been a big fan of the interest-based approach or “Getting to Yes” approach, championed by the Harvard Program on Negotiation. However, over the past ten years I have come to realize that the emphasis must be shifted to have a chance at successfully mediating high conflict disputes. Here are the four biggest things to avoid or forget about in this approach, which I call New Ways for Mediation®. 1. FUHGEDDABOUT giving the parties insights into their own behavior. High conflict people are stuck in a self-defeating pattern of blame and denial that prevents them from seeing their part in their problems and conflicts. They are preoccupied with blaming others and avoiding responsibility. You cannot break through this, because it has become a part of their personalities for most of their lives. You could yell at them, say it softly, deliver a brilliant analysis of their self-defeating  behavior or take a sledge-hammer approach, yet you will still not succeed at giving them insight into themselves. Yes, this is sad to say, but it just means that we need to adapt our approach to dealing with them without trying to give them this insight, because if you do: They won’t get it and will instead become highly defensive about their own behavior. It will harm your relationship with them because they will interpret your effort to give them insight as a personal attack, meaning that you don’t like or respect them as they are. Instead, what we do with New Ways for Mediation is to focus them on WHAT TO DO, rather than what not to do. We focus on skills to use in the mediation process, rather than insight about ineffective behavior. We don’t explore their interests, because that would involve insight into themselves and insight into the other party or parties, and that usually blows up into the attack-defend cycle we are trying to avoid. 2. FUHGEDDABOUT focusing on the past. High conflict people are stuck in the past, defending their past behavior as justified and attacking the “very bad” behavior of others. They are preoccupied with talking about how badly people have treated them and their efforts to recruit negative advocates to agree with them and help them attack those bad people (who are often those closest to them or used to be). The more they talk about the past, the deeper they get into their beliefs that it is all other people’s fault and they have to fight for themselves. Instead, we focus on the future and looking at choices, proposals and information about WHAT THEY CAN DO in the future to resolve or manage their dispute. Instead of asking probing questions about the past efforts or arrangements, we offer them alternatives or options for what they could do in the future. This may involve educating them about what others have done, usually telling about several scenarios so that they don’t get stuck on attacking or defending one approach that the mediator has mentioned. (At least three options is usually the best way to inform them, so they don’t fight over just one or two options as “right” or “wrong.”) Another approach is to emphasize their own proposals for what to do now, so that they are busy thinking of solutions rather than just emotionally reacting to what another party is saying. (See my book titled So, What’s Your Proposal for more details on implementing this method in any setting.) This can be especially useful for those who have very little time available for mediation, such as just 1-2 hours for the whole dispute. You can have them come prepared with proposals to discuss so that you can get right down to business. Since there is no exploration of interests before proposals in this process, and there is no opening statement about the past, this can be quite efficient especially when dealing with those who are easily emotionally upset. Of course, they may need to talk about the past some because it is often a past behavior that has brought them into mediation, especially the mediation of a legal dispute. However, put more emphasis on the future and what to do now. That’s why the fuhgeddaboudit is not focusing on the past, rather than never talking about the past. 3. FUHGEDDABOUT about emotional confrontations or discussions of emotions. High conflict people don’t go through the normal grieving and emotional healing process the way that most people do. Instead, they carry around a feeling of being helpless, vulnerable, weak and like a victim-in-life. Most people can talk about an upsetting problem for a few minutes to an attentive person and then feel better. However, high conflict people don’t seem to heal past emotional hurts and instead get stuck talking and venting about how upset they are, over and over and over again, without getting relief. What we have learned (the hard way) is that it is better to acknowledge how they feel and them shift the focus onto a task. Then, they generally feel better when they’re engaged in the task than when they are focusing on how badly they feel. This means that its very important not to confront them with anger, because that just puts them in touch with all of their own unresolved anger. It also means that you shouldn’t tell them that they are frustrating or difficult to work with. In addition, this means that you shouldn’t ask them how they are feeling. Instead, focus on what they are doing. If you want to make small talk before you get started or at the end of a mediation session, talk about a subject like the weather, traffic or plans for the weekend. An open-ended “how are you feeling

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Tips on Offering Mediation to a High Conflict Employee

©2017 Michael Lomax, JD Imagine you are a manager, and you have a supervisor who reports to you who is dealing with an employee with high conflict traits.  There has already been a complaint from the employee that the supervisor is abusing their authority over the employee.  You have investigated this complaint and it is clear the supervisor is using their authority appropriately.  However, you are concerned that the supervisor’s style is very directive and can be abrasive, which you know triggers the employee into defensive behavior. You are concerned that the relationship is deteriorating and will result in formal discipline against the employee or further complaints against the supervisor. You value both their contributions to the work of the organization and so you decide to offer a mediated/facilitated process to work on improving their working relationship and prevent further complaints.  This might be a service offered by an ombudsperson office/ conflict resolution program in your organization or through a private mediator.  (For information on how to approach the actual mediation of these types of disputes see the article Should Workplace Conflicts Use Mediation?) You sit in your office thinking, “How am I going to talk to my employee about going to mediation, without them simply getting defensive and rejecting the process out of hand?” 1. Stay Connected with them. When introducing the idea of participating in the mediation process, ensure you maintain a focus on your relationship with the person, not the outcome of whether or not they agree to mediation. High Conflict People (HCPs) are highly defensive to perceived criticism and negative feedback, such as any suggestion that you are upset with them or want to distance yourself from them.  It is easy to get hooked by HCP emotional attacks, and to either get defensive or withhold positive responses or be robotic.  Instead we need to demonstrate Empathy, Attention and Respect (EAR Statement™) for their concerns no matter how absurd. The paradox of this approach is that when you focus on the relationship you are more likely to achieve positive outcomes, including them choosing to mediate.  By staying connected with the HCP throughout the conversation the person will be calmer and see us as someone who wants to help them.  Using a calm, confident and reassuring tone of voice as well will help them hear the information and options we are presenting.  Don’t get fussed if they start blaming the other person or you, the way through this is to try to stay relaxed and find something to empathize with them about or respect them for.  Making statements like the following throughout the conversation can help calm someone with high conflict traits so they can hear your information: “I really value your contribution to the organization…” “I want to work with you on this…” “I understand this is difficult…” Using EAR Statements℠ can help keep the conversation moving in a positive direction and is less likely to trigger emotionally defensive responses.  Plus, they will see you as a helpful source of information, which will help them make better decisions. 2. Focus them on a choice. HCPs will quickly escalate into attacks and emotional outburst when they don’t feel in control of what is happening.   However, they may realise that is not wise to get angry at their boss in a meeting, so they may respond in a moderate way but afterward respond in a passive-aggressive way, such as sending an email above you to your own supervisor saying, “I felt interrogated” or filing a complaint against you. A very effective strategy for prevent this reaction is to focus the person on a choice.  This can shift them from their emotional upset into problem-solving, gives them a sense of control over what is happening and helps them take responsibility for solving their own problem.  If we try to convince or force our ideas on to an HCP, we will end up in a power struggle with them, because they are so distrustful and their emotions take them over when they don’t feel in control of what is happening to them. Offering the mediation option along with other options will help the HCP feel in control and they will actually be more likely to agree to mediation.  This could see you presenting options such as, meeting with the mediator to gather more information about the process before making a decision or entering into a skills-based coaching process such as New Ways for Work as a first step and then deciding whether to proceed with mediation.  These options provide a structured way forward and allow the HCP to develop relationships with the professionals who will be working with them. Obviously, an option is the HCP might not choose mediation and we need to allow for this as an option.  This might leave the manager continuing to monitor the situation. However, as much as this is an option, we need to point out that there are choices, and there are consequences for each choice. 3. Educate them about the consequences of each choice. Because HCPs often think they are in a fight for their survival (even over objectively small issues) they don’t analyze the consequences of their choices.  If we come from a caring place we can educate an HCP about the consequences of each of their choices. For example, in the case of the employee choosing to ask the manager to simply monitor the situation, the concern for the manager is the HCP will have unrealistic expectations (“You will protect me”) and when those expectations aren’t met, the HCP will blame the manager (“I trusted you, and you betrayed me”).  In this case, the manager in a caring way can educate the person about the realities of this choice by saying things like, “I understand this is a frustrating situation, what you might not realise is in my role as a manager I am responsible to address anyone’s behaviour that might breach respectful workplace guidelines and I have to be

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