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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. RESOURCES: Working with High-Conflict clients? Learn some New Ways for Mediation®. R U Talkin’ to the Wrong Brain? Learn what to do and what to avoid when talking to upset people. Get the BIFF Response® Book and learn the 4 easy steps to control hostile communications.

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10 Paradigm Shifts of High Conflict Mediation

©2017 Bill Eddy, LCSW, Esq. I’ve been doing mediation for over thirty years, primarily in family cases, but also some in business, personal injury, neighbor and workplace disputes. Over the past ten years, I’ve been working on how to adapt the mediation process for one or more high-conflict participants. It has slowly dawned on me that much of what helps is to do the opposite of what I was doing before. Most of what I have learned came from the failure of more traditional approaches that work with most people. In this article, I want to briefly point out ten paradigm shifts that seem to bring more success, when there are one or more high-conflict people involved. I am not saying this is what you should do in mediation with the 80%-90% of people who are not high-conflict. But you can use these methods with anyone. You can also use these methods whether you are mediating with the parties in the same room together, or in separate rooms or online dispute resolution. With ongoing relationship disputes, such as family, neighbor and workplace, I prefer to have both parties together in the room to help them strengthen their negotiation skills together and to see each other as ordinary human beings. However, with high-conflict people it may be necessary to have private caucuses for part of the time. 1. Focus on the future; strongly limit discussions of the past Many mediations involve a thorough discussion of what each side’s point of view is and what has happened in the past. Yet with high-conflict people, their discussions of the past lead immediately to overwhelming emotions, angry exchanges and general frustration. Trying to get the “facts” of the case straight is just not possible in these cases. So it helps to really, really emphasize from the start: “We will be talking mostly about the future and very little about the past.” The more high-conflict the case, the more strict the mediator needs to be about this, I have found. However, by saying “very little” about the past, it gives you room to allow brief discussions of the past. Then, if/when it goes off track, you can remind them we’re focusing on the future. 2. Forget about insight and making them better people It’s very common in mediation to want to lead the parties to have insight and increased self-awareness about their dynamics in a dispute. With my background as a social worker before becoming a family lawyer, I originally wanted to transform my clients into better people from having worked with me. I have since learned to forgetaboudit! High-conflict people are not going to have insights about their past behavior and why they should do things differently in the future. They are just too defensive. Just like focusing on the future instead of the past, they are more successful if they focus outward, rather than inward. Mediator efforts to get them to change tends to make them feel like you think there is something wrong with them as they are. This puts unnecessary stress on your working relationship and often makes things worse. 3. Focus the whole mediation on their proposals Tell them from the start that the mediation process will focus on their proposals—their suggestions for agreements going forward. I like to say: “Proposals are the building blocks of agreement. They often aren’t the final agreements, but they bring us closer to the final agreements.” So helping them gather information, ask questions, and make lots of proposals along the way will help them reach agreements. I teach them a 3-step proposal process: A. The first party makes a proposal involving Who will do What, Where, and When. B.  Then the second party asks Who, What, Where, and When questions about it. C.  Then the second responds with “Yes.” “No.” Or, “I’ll think about it.” 4. Ask for their “thoughts & questions,” not opening statements Most mediators start off the mediation with an opportunity for each party to have uninterrupted time to share their view of the case—their “opening statement.” However, this tends to focus everyone on the past, which we’re trying to avoid. So instead, you can ask for their “thoughts and questions about the decisions you want to make.” Then, give them each a turn to talk about that. This gives them an opportunity to be heard and to get the mediator’s full attention and respect, while steering clear of the minefields of the past. However, this doesn’t need to be very long. The goal is to feel heard about something, rather than to solve anything at this point. You want to avoid the long-winded, angry, blaming story of what each high-conflict person feels about the other person. That will set back the process and perhaps bring it to a halt. For more detail on this approach, see article: “When Storytelling Hurts Dispute Resolution.” 5. Instead of your probing questions, educate about options Mediators often ask a lot of probing questions, especially in the early stages of the mediation. With ordinary people, this often helps get at the heart of the matter and opens up helpful discussions, especially for those in ongoing relationships. However, with high-conflict people this tends to make them sit back and just wait to be asked questions and to give answers. This also tends to pull the discussion back into the past where things can get stuck or blow up. It further runs the risk of sounding like the mediator has taken a position challenging the person they are asking questions. High-conflict people become easily defensive and/or blaming when they are asked questions. Instead, I have found that it helps to teach them about options when I feel like asking probing questions. Since high-conflict people often don’t know about or think about alternative solutions, it helps to just tell them what is possible and what other people have done in similar circumstances. This takes any value judgments out of the picture. This works better than trying to lead them to deeper awareness through probing questions, or

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What is Transformative Mediation and How Is It Connected to the New Ways for Families Method?

Guest Blog: Jennifer J. Winestone, Esq., LL.M. (ADR) “When we are no longer able to change a situation, we are challenged to change ourselves.” –Viktor Frankl Mediation is a negotiation that is facilitated by a neutral third party, whose job is to help disputants find a mutually acceptable resolution to their problem.  Transformative mediation is mediation’s Paleo diet.  It’s a back-to-basics and root-source approach to mediation.  Instead of seeking resolution (a settlement/agreement), transformative mediation seeks to change (transform) party-interaction, perception and approach to conflict.  And, according to the theory, this is exactly what parties are really looking to achieve in conflict resolution: “……the help parties most want, in all types of conflict, involves helping them end the vicious circle of disempowerment, disrespect and demonization, alienation from both self and other.  Because without ending or changing that cycle, the parties cannot move beyond the negative interaction that has entrapped them and cannot escape its crippling effects.” [1] In other words, transformative mediation focusses on the “people” as opposed to the “problem”.  Sound familiar?  It should.  This is also the focus of the New Ways for Families® approach: a people centric, skills-based protocol for conflict resolution. The New Ways for Families® method is transformative. A skills-based and transformative approach to family conflict resolution is not a luxury; it’s a necessity.  Why?  Because family dynamics, issues, circumstances, and ‘players’ evolve over time. For this reason, family litigation is often viewed as a moving target and, for some, it creates an avenue for a never-ending and destructive conflict cycle.  Similarly, settlement-directed mediation may only offer a short-term solution to family conflict. New conflicts will inevitably arise and require new interventions for resolution. The New Ways for Families® method (“Skills Before Decisions”), however, offers to alter party dynamic and approach to conflict.  It is designed as a future-focused transformative model, which seeks to change the course of conflict by empowering the disputants with new skillsets.  The skills they learn help them to positively address current conflicts and provide opportunities for preventing a future destructive conflict cycle. Parties in family conflict are not only seeking resolution.  They are not only seeking ‘peace’.  They are looking for empowerment and hoping it will free them from the crippling effects of their family conflict. Empowerment and freedom in the face of debilitating and polarizing conflict?  That is transformative. References: [1] Robert A. Baruch Bush and Sally Ganong Pope, Changing the Quality of Conflict Interaction: The Principles and Practice of Transformative Mediation, 3 Pepp. Disp. Resol. L.J. Iss. 1 (2002) Jennifer Winestone is an attorney-mediator and principal of Winestone Mediation, a Los-Angeles based family mediation practice.  Jennifer believes in evolving conflict resolution processes and strives to be part of positive change to mainstream approaches in family legal conflict.  She is also a licensed provider of the New Ways for Families® method. Read more about Jennifer Winestone at WinestoneMediation.com

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