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.
True or False? If You’re Not Willing To Adapt Your Strategy With High Conflict People, You Should Get Out Now
©2016 Megan Hunter, MBA High conflict cases in the courts and high-conflict personalities (HCPs) in the workplace get a lot of play these days and we’re seeing more people than ever claiming expertise in dealing with them. But should they? What qualifies anyone as an expert, or even moderately competent, to take on a high-conflict case, workplace or other dispute? Many wise people avoid HCP cases/situations/relationships like the plague. They know that they don’t like dealing with them because of the exhaustion and risk, or their wise mind tells them they’re not qualified. Others walk blindly into high-conflict situations and find themselves caught in a trap that often ends badly. High conflict cases require expertise. You must: Have Expertise in Identifying One or More Potential HCPs Can you sniff out a truly high conflict case? Do you know one when you see one? Do you know you’re getting it right? That you’re accurately identifying the one (or maybe both) who truly has the characteristics of an HCP? Maybe you are adept at spotting one or more HCPs, but is that the extent of your expertise? For some, identifying the true HCP is difficult. The risk is in getting it backwards. Identifying a truly “upset” person who has finally lost their cool vs. a true HCP. How do you know? How do you tell? It’s not just important, it’s imperative. Commit to Truthfulness Because we walk on eggshells around HCPs, it’s tempting to avoid being truthful with them. Unfortunately, this is a sabotage approach. Most will respond in a better manner more consistently to people who are truthful. Avoid Advocating for a Bulldozer Approach If we accept and truly believe that HCPs require an adapted strategy, then we’ve accepted that they are a population who need professionals who are willing to abandon their bulldozer approach. With HCPs, it might be worth thinking about whether we are ethically and morally obligated to adapting our strategy and helping them along their difficult journey instead of encouraging more conflict, litigation, separation, and possibly termination. Have Good Boundaries What are boundaries? Sounds like something we need to read about in a book about saving a marriage. With HCPs, you do them no favors by bending your boundaries. They’re used to everyone around them bending boundaries because we’re so used to walking on eggshells around them. Having boundaries with HCPs means staying calm, remaining firm with gentleness, telling the truth always, holding them to their word, holding them to the laws, policies and guidelines of the courts, workplace or other governing bodies. When we offer good, consistent boundaries, we provide structure, which provides a sense of comfort and safety for them. Listen, but not too long. When you say you’ve scheduled a one-hour meeting, hold to it. Remind yourself to thoughtfully consider all requests, especially on-the-spot situations, before agreeing. Leaving Decisions up to Them We’re problem-solvers by nature, especially at work. Our jobs require us to be in left brain, analytical, problem-solving mode all day, so it’s natural to come up with solutions for our clients, employees or others that we’re trying to help. Even if HCPs grasp onto your solution, it’s at risk for backfiring in a big way if it doesn’t work out exactly as they expected. It’s okay to help them come up with several ideas, but the ultimate decision must be left to them. Why? It makes them think, and when they’re thinking their brain feels calmer. When their brain feels calmer, they problem-solve better. It’s a good cycle. Plus, they’re more likely to stick with their own decisions and they’re more than likely to eventually blame you if they adopt your solutions. Keep Your Emotions Out of It We’re not robots. We’re human. We’re going to get emotionally ‘hooked’ in highly charged high conflict situations. Some of us don’t react to heightened HCP energy, but that’s the minority. Most of us get emotionally ‘hooked’ at times. The trick is learning to override your emotional response (to argue, explain, get angry, shut down). The above points are critical to dealing successfully with HCPs, but they are meaningless without the most important ingredient—EMPATHY. It’s so hard. We’re faced with extending empathy to people who make us feel repulsed by or even afraid of them at times. This can be the most difficult activity for many and it’s the question most asked by those who have worked with them. So how can you summon empathy when you would rather run as far and as fast as you can away from them? It all comes down to understanding their fear-based, invisible (to them and to us) personality that parades as the opposite of what it really is. Recently I’ve begun explaining it this way to people who are tired of dealing with HCPs and having a difficult time conjuring up empathy. I paint a picture of that person treading water alone in the ocean. When we extend logic, explanation, insults and avoidance to them, they just sink deeper. Arms flailing, they’re barely able to keep their head above water. When we extend E.A.R.® (empathy, attention, or respect) to them, they’re able to float, and when they’re floating they can relax a little. When they relax, they can think. (learn more about E.A.R.®) Empathy is King. It’s the Ultimate Kindness. Can you adapt your strategy in these ways when working with HCPs? If you’ve tried unsuccessfully, try the ocean struggle strategy. It takes just a little bit of discipline on your part. It costs you nothing. You have nothing to lose. I think you’ll be surprised at the empowerment you’ll feel when your upset, insult-hurling person calms down as a result of your empathy. You’ll want to try it again and again because you’ll understand that adapting your strategy has profound impact on other humans who don’t even realize they need you to adapt. Expect more flareups. again and again. Just continue using E.A.R.® when they do. The more often you respond with E.A.R®, the more confident
Why Is Being A Target of Blame So Stressful?
©2016 Megan Hunter, MBA Whether you’re in a dispute with your brother, classmate, work colleague, spouse or even someone you don’t know, conflict is stressful. We talk about healthy and unhealthy conflict, and yes, some conflict is healthy, but conflict is almost always a distraction from work, life, family and other important things we all have to do. Worse, when conflict is stirred up by someone with a high conflict personality (HCP) and you become their target of blame, you’re not only distracted, you’re probably furious, scared, stressed out, perplexed, feel like you can’t control the situation, and maybe even fear for your livelihood and sanity. What’s the difference between conflict with a reasonable person, even if they are angry, and a high conflict person (HCP) who has chosen you as their target of blame? Regular conflict has it’s roots in differences that have merit, or maybe a misunderstanding or miscommunication between people. It may take a while to reach resolution and an ongoing relationship may be out of the question, but both sides are usually willing to compromise even a little in order to achieve resolution. They want to move on and don’t dwell on the issue, even if they have to compromise. High conflict disputes may also have roots in differences that have merit, but more than likely they don’t. Even if they do, it’s how conflict is handled that separates the reasonable person from the HCP. Do you remember the Bill Engvall comedy routine in which he tells a joke and ends it “Here’s your sign”? Kind of a “duh, did I really have to explain that to you” statement. Conflict with an HCP is similar. When you hear an allegation or receive a demand from someone that just seems completely unreasonable or even a little unreasonable and you realize your head is cocked to the side and your face is screwed up in a perplexed look……..well, here’s your sign. You’re possibly (most likely) dealing with an HCP. What’s the difference between a reasonable person and an HCP? The HCP won’t compromise. You compromise and compromise again and again, but they won’t and don’t. They have to win no matter what. When you think you’ve done everything possible to compromise, they come up with a new list of allegations and demands that feel like an attempt to punish and humiliate you. They won’t budge an inch to meet you in the middle; not even a centimeter. When you feel like you’ve compromised and given in 100%, they come up with another demand or allegation. They turn others against you and try causing division in teams, partnerships, and other relationships. They won’t deviate from their position even if it hurts them, their position, their case, etc. You know what the HCP is saying isn’t true, and you can prove it. They don’t care if you can prove it—they’re going to do it anyway. They may lodge false accusations with no basis in fact. What does this look like in the real-world? Here’s an example. Cut Your Nose Off to Spite Your Face A small business owner who sold t-shirts at fairs and other events had an opportunity to sell a new t-shirt at a specific event. The shirts sold very well but there were a few left at the end, so he took them to the next event in another town and sold the remainder there and even took orders for more that would be shipped directly to the customers. Thinking the vendor from whom he’d purchased the t-shirts originally would be thrilled to hear the good news, he excitedly relayed the news. However, the response was far different from expected. The vendor was angry. She insisted that she’d not granted permission for him to sell anywhere but that single location. [In this case, there were no legal or other restrictions preventing the sale in other locations]. She refused to sell him the t-shirts that had sold over and above and screamed that she’d never let him re-sell shirts from her company ever again! He even offered to forward 100% of the profit from the additional sales to her—she could keep all of it. Still, she refused. He was confused of course, and this is where most of us get caught in the HCP trap. We expect rationality from everyone. Our brain fights to find rationality, so we explain our position, explain the logic, explain that the t-shirt vendor actually made more profit due to selling at the second event. We do our best. We even offer to lose money on the deal. It lands on deaf ears. Why? Because the issue’s not the issue—the personality is the issue. We’re trying to throw logic and rationality at a brain with an operating system driven by a fear. In this case it was likely a fear of feeling inferior. How dare you make the unilateral decision to sell shirts without checking with me first and getting my permission?!?!?! In the meantime, this poor fellow got more frustrated and stressed. It seemed that he could do nothing—not even with his most persuasive skills—to get her to “get it”. He was willing to bend over backwards to accommodate her, even to the point of losing his hard-earned money. He apologized, but even that wasn’t enough. She was relentless. With each little victory, she was empowered to seek more victory. At one point she threatened to contact the Better Business Bureau and also promised that she and her entire organization would never do business with him again. So, what should he have done? This is the trickiest part of all. The moment that her response, reaction and demands seemed illogical or unreasonable, he should have reminded himself of the Bill Engvall phrase . . . “Here’s your sign.” 1) The minute someone seems entirely unreasonable, you have to override your natural response (hard to do because you don’t have to override your natural response 99% of your day); take a step back, get unhooked from