Managing HCPs in Civil Litigation
© 2015 John C. Edwards, Esq. It is expected and understood by most people in the legal profession that because of the intensely personal nature of the issues that come up in family law, many if not most cases in Family Court will be driven by High Conflict Personalities (HCP’s.) What is not so expected and understood is that the same personality driven conflicts that generate high conflict family law cases are the driving force behind much of the civil litigation that the courts and mediators see today. Lawyers are well trained to spot and analyze legal and factual issues, and then to achieve their goals by persuading others to see and understand the facts and law (the issues) as they have analyzed them. In my years as a trial lawyer and early years as a mediator, and before I understood the nature of High Conflict Personalities, I was frustrated by those cases in which legal reasoning and logic, the stock and trade for a lawyer, seemingly meant nothing. I couldn’t get my point across, but I kept trying, as if saying it over and over again it might somehow sink in. In other cases, lawyers resort to high pressure tactics and threats in order to convince the other side to capitulate. Although this tactic may be effective in some cases, with HCP’s it often drives them in the other direction. Now I know that with HCP’s the “issue” is not the issue, the personality is the issue, and I also know that in the context of a mediation, that personality is not going to change. In civil litigation mediations, I am often asked or “tasked” with making someone understand a certain reality. Legal arguments are made and repeated, but usually to no avail. The lifelong pattern of thinking and behavior that dominates the HCP personality is not going to change in the limited time allotted for a mediation! The HCP in a non-family law civil case is no more likely than an HCP in a family law case to have insight into his or her own behavior as the cause of a problem. The life-long enduring pattern of blaming others for all of life’s difficulties (which may very well have been the reason why the case is in court) is not going to disappear because of some well-crafted legal reasoning. Although any case in civil litigation is likely to have one or more HCP’s, in my experience there are certain types of cases in which I am very surprised if there are no HCP’s. Probate and Condominium Association cases particularly come to mind. When fights break out among siblings after the death of parents, or when homeowners feel that their rights to enjoy their property are being infringed, it is almost always the case that the “issue” is the personality as opposed to a complicated legal issue. If we aren’t likely to resolve the conflict by legal reasoning and persuasion, and if threats don’t work, what can be done? Most importantly, we must remind ourselves what we shouldn’t do. First and foremost, remember that HCP’s are not logical thinkers and they do not respond well to negative feedback, therefore we must resist the urge to admonish or even advise them. Also remember that the HCP’s behavior is fear driven, which may lead them to want to fight. We don’t want to fight, but if we feel like we are being attacked, we have to remind ourselves that this isn’t about us, its about the HCP’s inability to manage his or her emotions. The most important skill for those of us dealing with an HCP is to establish and maintain a connection with the HCP. How we communicate, both with what we say and how we say it is critical. With a connection to the person, we can begin the process of looking forward to a reflective discussion wherein possible consequences can be considered along with possible resolutions. Without a connection, we are likely doomed to the endless cycle of defensive thinking and behavior that characterizes the HCP mindset. One of the most effective skills that can be employed to interrupt the HCP’s need to defend themselves and assign blame to someone else, is to allow their version of the case to go unchallenged. With no challenge to their version, it is less likely they will have a need to defend. Not challenging is not the same as agreeing, there is no need to do that either. Respectful, empathetic listening goes a long way. “You might be right” are powerful words in this setting. Our goal is to turn the focus on the past into proposals to resolve the issue before us today. When a person concentrates on the future, they won’t be stuck in the past. The past is about blame, the future is making choices. Most HCP’s have the capacity to solve problems when they are not stuck in a reactionary state of mind that makes them feel they have to fight. It’s actually pretty simple to get the HCP to make a proposal for resolution, just ask. If you have prepared for the mediation by explaining to all the parties at the outset of the proceeding that your focus will be on making proposals for resolution instead of hashing over the past, they will be “primed” so that when the time comes to make one, they won’t be surprised. By this part of the process, you should have developed a connection with this person. You have been respectful and empathetic, no matter how extreme their position or behavior might be. Getting a proposal, of course, doesn’t guarantee resolution. The cycle of blame often begins again once the initial proposals are exchanged. Do not despair, because once again you will have the opportunity to focus on the future, not the past. With empathy and respect, just ask the party to focus on a new proposal and forego criticizing the other party’s proposal. It’s not uncommon for the
Taking the Assertive Approach in Family Court
© 2015 Bill Eddy, LCSW, Esq. Family court presents a difficult dilemma for reasonable people. If you act reasonably and use the cooperative problem-solving skills you use in daily life, you risk losing your case, because family court is a highly adversarial process that rewards combative thinking and behavior. This is why people with Borderline Personality Disorder (BPD) and Narcissistic Personality Disorder (NPD) traits are often attracted to court and often win. If the target takes a passive approach—and many do—then the blamer’s allegations appear unchallenged and therefore true. Sarah allowed this to happen at her hearing, when she did not have an attorney and did not respond in her own defense to Sam’s allegations. If you allow this to happen, it gets harder and harder to overcome the appearance that you accept the allegations as true. Remember, the burden is on you (and your attorney) to assert your position. The court won’t otherwise try to figure it out, and rarely asks you questions, such as whether or not you agree. You or your attorney must convey assertively that you do not agree; otherwise the judge may assume that each of the blamer’s statements is true. But if your approach is too aggressive, you may give the appearance of being the abusive person you say you’re not. Thomas’s urge to have his attorney make a lot of unsupported allegations against Tammy at the next hearing will generally backfire. While TV and movies are filled with dramatic and aggressive attorneys, this often backfires in real courts, especially in the long run. Ultimately, most court cases are won or lost based on the evidence gathered through assertive homework. In reality, in family court, the burden is on you to raise credible reports of abuse you or your children have experienced, or to respond to false abuse allegations against you. You and your attorney must be very assertive about gathering evidence that already exists, presenting that evidence to the court, and noticing new evidence as it occurs throughout your case. The Assertive Approach Start documenting right away. High-conflict divorces often start with an emergency court hearing about true or false allegations of abusive behavior. If you or the person with BP or NP traits is seeking court orders (often restraining or “protective” orders), it is critical that you put together detailed, accurate information to present to the court. In a notebook, record detailed information about parenting behavior (yours and the other parent’s), abusive behaviors, threatening statements made, and explanations of any confrontations between the two of you. Many people keep a daily diary (in a safe place), even before they separate. Focus on actual statements and behaviors, and avoid opinions and interpretations. If and when you need to describe events in court, you want to be seen as capable of presenting very objective, factual information that’s most helpful to the judge and other professionals. Information that is written down the same day as it happens is considered far more credible than something written a week or a month later. Think strategically, not reactively. Avoid acting out of frustration and anger; otherwise you may do things that waste energy and will hurt you in the long term. Example: Thomas was so upset after a hearing in which supervised visitation was ordered for him that he sent Tammy an e-mail saying that she should be ashamed of herself, and that their daughter would never forgive her for lying and saying he abused her. At the next hearing, this spontaneous and reactive e-mail showed up as an exhibit to Tammy’s declaration, intended to show that Thomas was aggressive, angry, and unstable. Thomas’s lawyer convinced him to never send an angry e-mail again without showing it to him first. Check with a therapist or attorney whenever you feel like communicating angrily with your partner. You are better off processing your frustrations in therapy than putting something angry in writing or in a voice mail that could inadvertently become a new court document. Advise your friends and relatives to avoid such angry statements to your partner for the same reason. Choose your battles. Many people who are divorcing someone with BP or NP traits complain about how unfair the court process is and how unfair it is that the blamer gets away with certain things. Of course, this is upsetting, but your case actions must be based on what you need to do to make it right, not what you feel upset about. You must think strategically and choose your battles. Talk to your attorney about which issues need a response and which ones you can ignore. Attorney letters sent back and forth can be very provocative but don’t always need a response, especially if they are not in the court record. “Your client is always late with support payments and doesn’t seem to care if the children ever eat again”—this letter may or may not need a response at all. It is a choice. If there was a problem and the payment was a day or two late, it may help to provide an explanation to the blamer’s attorney, just in case this letter shows up as an exhibit to a declaration at the next hearing. You should always respond to court declarations containing false statements. A general denial may be sufficient, but false information at court needs a written correction, just to protect you now and in the future. Don’t make yourself into a target. When you’re in a family court battle, you need to be as perfect as possible. Stop and think as often as you can. Remember, you’re being watched by your partner and your partner’s attorney. Any of your public actions and some of your private actions may be exposed and twisted around to fit their adversarial purposes. Innocent discussions with your partner, or even your partner’s relatives or friends, may get blown out of proportion. Just when everything seems to be going well, you may be caught by surprise and some innocent action
Are High Conflict People Ruining Your Business?
© 2015 Bill Eddy, LCSW, Esq. & L. Georgi DiStefano, LCSW [Originally published by Capital Business, a subsidiary of the Washington Post, in March 2015] Are high-conflict people increasing in your workplace? They can be customers who yell at employees and store owners. Employees who intentionally undercut their colleagues. Supervisors who are so disdainful that employees become depressed, physically sick or quit. They cost businesses millions of dollars each year in lost work, health care costs, low company morale – and the diversion of management time and energy into dealing with them. High-conflict people (HCPs) aren’t just difficult people – they’re the most difficult people, because they tend to focus on a “target of blame.” They have a lot of “all-or-nothing” thinking, unmanaged emotions and extreme behavior. For them, the issue is not the issue, their personalities are the issue. They act in ways that most people would never act, but they tend to excuse this behavior because of what others did, or because they were tired or had a bad day. You can’t easily give them feedback, as the intensity of their defensiveness will take over. They share many personality traits with those who have personality disorders. Research cited in the 2013 DSM-5 (the manual of mental health professionals), suggests that “approximately 15% of U.S. adults have at least one personality disorder.” This is much higher than the reports of the prior DSM-IV, published in 1994. The traits HCPs share with personality disorders are a lack of self-awareness, a lack of behavior change and seeing their problems as caused by someone or something else. This makes them difficult employees and managers, but not impossible. In many cases, understanding their common patterns can help others avoid taking their behavior personally and finding effective ways of communicating with them in many cases. Common Personality Patterns Five of the ten personality disorders seem especially likely to show up at work with high-conflict behavior. Not everyone with a personality disorder will become engaged in high-conflict behavior and not everyone with high-conflict behavior has a personality disorder. But there is a lot of overlap. And it’s very important not to tell someone that you believe they have this problem, or they will generally act much worse toward you. In many cases, this problem is not obvious at first, or at all, until situations blow up: Narcissistic personality disorder is characterized by an arrogant sense of superiority, a demeaning attitude, a lack of empathy, and a sense of entitlement. They often “kick down and kiss up,” meaning that they may be bullies and slackers with those below them, but seem charming and hard-working to their higher ups. Borderline personality disorder catches others by surprise, with their sudden and intense anger – totally out of proportion to the situation – combined with a charming disposition the rest of the time. Antisocial personality disorder (also known as sociopath) may steal, lie, manipulate and dominate until they have gotten what they want and moved on. However, they can succeed and seduce those around them for months or years at a time. Many have criminal records – that is, the ones who get caught. A good example of this personality is in the current movie “Big Eyes.” Paranoid personality disorder suspects conspiracies against them and may carry grudges for months or years. Histrionic personality disorder increases drama in the workplace, with great stories but little positive benefit. The result is that they have a pattern of high-conflict behavior that increases conflict rather than reducing or resolving it. This pattern usually happens over and over again in many different situations with many different people. The issue that seems in conflict at the time is not what is increasing the conflict. The “issue” is not the issue! With HCPs, the high-conflict pattern of behavior is the issue. Bottom line: “It’s all YOUR fault!” they say. How to Spot High-Conflict Behaviors All-or-nothing thinking: HCPs tend to see conflicts in terms of one simple solution rather than taking time to analyze the situation, hear different points of view and consider several possible solutions. Compromise and flexibility seem impossible to them, as though they could not survive if things did not turn out absolutely their way. They often predict extreme outcomes if others do not handle things the way that they want. And if friends disagree on a minor issue, they may end their friendships on the spot – an all-or-nothing solution. Unmanaged emotions: HCPs tend to become very emotional about their points of view and often catch everyone else by surprise with their intense fear, anger, yelling or disrespect for those nearby or receiving their comments over the Internet – or anywhere. Their emotions are often way out of proportion to the issue being discussed. This often shocks everyone else. They often seem unable to control their own emotions and may regret them afterwards – or defend them as totally appropriate, and insist that you should too. On the other hand, there are some HCPs who don’t lose control of their emotions, but use emotional manipulation to hurt others. They trigger upset feelings in ways that are not obvious (sometimes while they seem very calm). But these emotional manipulations push people away and don’t get them what they want in the long run. They often seem clueless about their devastating and exhausting emotional impact on others. Extreme behaviors: HCPs frequently engage in extreme behavior, whether it’s in writing or in person. This may include shoving or hitting, spreading rumors or outright lies, trying to have obsessive contact and keep track of your every move – or refusing to have any contact at all, even though you may be depending on them to respond. Many of their extreme behaviors are related to losing control over their emotions, such as suddenly throwing things or making very mean statements to those they care about the most. Other behaviors are related to an intense drive to control or dominate those closest to them, such