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
Family Law: 3 Theories of the High-Conflict Case
Family Law: 3 Theories of the High-Conflict Case ©2017 Bill Eddy, LCSW, Esq. I do a lot of consulting to family lawyers and their clients (often on the phone together), as well as many self-representing people in family court cases. These often involve high-conflict custody and access issues, although finances can also be involved. One of the biggest problems I keep seeing is that many family law professionals (lawyers, judges, mediators, evaluators, counselors, etc.) have a presumption in high-conflict cases. Here are the three most common presumptions: When Person B says Person A is acting badly 1. Equal parent conflict It’s both! These professionals say. “Both Person A and Person B are acting badly. If one says the other is acting badly, then both parties are relatively equally acting badly. If one is lying, the other probably is. If one is hiding money, the other probably is. If one is abusive then the other probably is too, even if in a different way.” Many of these professionals began practicing family law in the 1980’s, when the courts starting using mediation services to help resolve parenting and other disputes. Lawyers, judges, mediators and counselors came to see conflict as a “family systems problem” in which both parties contributed. While this is true in terms of how they communicate, the contributions to the behavior problems were not always equal. Some individuals were, in fact, behaving badly; while some others were not. Sure, they reinforced each other’s behavior by the ways that they communicated. But this didn’t mean that both were alcoholics, or spousal abusers, or child abusers, or alienating the children. There should not be an “equal parent conflict” presumption. 2. Abuse allegations are always true It’s true! These professionals say. “The first person to say the other is abusive is probably telling the truth. Therefore, when Person B says Person A is being abusive (domestic violence, child abuse, substance abuse, alienation, etc.), I believe it’s true. After all, victims wouldn’t lie about these things. Children don’t lie about these things. Just to be safe, assume it’s true, until Person A can prove otherwise.” This presumption started taking hold in the 1990’s, with the OJ Simpson domestic violence/murder case. The Violence Against Women Act came into being and allegations of domestic violence became raised in approximately half of contested parenting matters. I have had cases in which I heard the words above stated in family court and out of court. To be fair, safety comes first and domestic violence is a real problem. But I believe (and I teach judges) that protective orders can be made while also acknowledging that the judge does not know all the facts of the case and will not make a presumption about what is really going on – but can still make protective orders based on the face of the pleadings and/or testimony. When a judge, lawyer, mediator or others say that she or he cannot make a presumption to fully know what is going on, it keeps the conflict calmer and increases the chances of getting good information at future hearings which will be considered with an open mind. There should not be an “always true” presumption. 3. Abuse allegations are always false It’s false! Some professionals say. “Person A is not being abusive, is not acting badly at all and has been wrongly accused. Person B is, in fact, acting badly and making false allegations about Person A. Person B may also be engaged in abusive behavior (domestic violence, child abuse, substance abuse, alienation, etc.) and “projecting” their bad behavior onto Person A. After all, most people in family court making allegations of abuse are just trying to get an advantage, either in parenting, finances or both.” This presumption started occurring in the 2000’s. I have also heard these statements above in some cases. To be fair, there are many false allegations made in courts (and politics and in the news) to get an advantage. But again, it’s important for legal professionals to keep an open mind and to treat clients with respect, regardless of which side they are on regarding the allegations. Just saying that you may never know for certain what is going on and that you will approach the case with an open mind, really helps people who may be telling the truth but are used to being discounted. Professionals can say: “You might be right. Or the other person might be right. I’m not deciding who is a good person and who is a bad person. Let’s focus on the facts and avoid emphasizing the emotions—which are always strong no matter whether the allegations are true or false.” There should not be an “always false presumption.” Litigation: A Single Theory Process Family courts are based on the traditional model of litigation: There is a Plaintiff and a Defendant, or sometimes a Petitioner and a Respondent in some states. When an allegation is made, the whole system focuses on determining whether that allegation is true or false. This means that the spotlight is on the Defendant to prove their innocence and the Plaintiff to prove their guilt. This is often based solely on who is believed to be lying and who is believed to be telling the truth. But litigation is poorly designed for family issues, for several reasons: A. There should be several theories considered, not just one “issue.” B. Family systems cloud and distort information to maintain the family system, so that even children say what they think the power structure of the family wants them to say, rather than objectively describing their family dynamics. C. Many family members honestly believe false information, so that determining who seems to be lying and who seems to be telling the truth doesn’t help when someone is honestly distorting information and honestly believes things that are not true. Confirmation Bias In all research there is a concern about confirmation bias. This means that if you have one theory of the case, you will “confirm” your theory:
Differences in Dealing with Borderline, Narcissistic and Antisocial Clients in Family Law
Differences in Dealing with Borderline, Narcissistic and Antisocial Clients in Family Law ©2017 Bill Eddy, LCSW, Esq. By now, most family law professionals know that they are regularly dealing with some clients or opposing parties with borderline, narcissistic and/or antisocial personality disorders or at least some traits of these disorders. While in the past they were simply thought of as jerks or worse, we now know there are predictable patterns of behavior involved and generally effective ways of dealing with them. What are their Differences? Borderline Personalities People with this personality disorder or traits have wide and sudden mood swings, from very friendly and rational to extremely enraged. They are about equally women and men. (Many domestic violence perpetrators have this personality style.) They constantly fear abandonment and therefore cling to their professionals with lots of phone calls, emails, etc. They can be very vengeful and yet spend a lot of time seeking vindication that their actions have been just fine and appropriate for the situation (when you can see that the opposite is true). Narcissistic Personalities Those with this personality disorder or traits see themselves as very superior people and spend a lot of time insulting and demeaning those around them, including their professionals. They are about two-thirds men and one-third women. They are often very charming at first, but soon it becomes obvious that they lack empathy, are self-absorbed, can’t handle any personal feedback (but they can give it), make demands but don’t respond to requests, feel entitled, ask for favors, feel victimized much of the time, and may become enraged when they feel treated unfairly (even when it’s because of their own behavior). Antisocial Personalities This personality disorder (also known as sociopathic) is driven to dominate others, to violate social laws and norms, to lie a lot, to engage in high-risk schemes, to be con artists, to make lots of threats and many end up in jail (but many others don’t). Yet they can be extremely charming and can appear very reasonable in public. Many of them enjoy hurting others and some enjoy the thrill of using the family court system to punish those who challenge them. Some are frequent spousal abusers. Most are men. More than One Many (perhaps half) of those with one personality disorder also have another one. While these are three out of ten possible personality disorders, these are the three we see most commonly in today’s family court. If you’re dealing with someone with two or all three of these, just do what is suggested below for both or all three of them. What to Avoid With all of these personality disorders, there are four approaches that you may commonly use with ordinary clients that you should avoid with personality-disordered clients: Avoid trying to give them insight into their own behavior. Avoid emphasizing the past. Avoid emotional confrontations. Avoid telling them they have a personality disorder or high-conflict personality. From my observations, family lawyers, judges, mediators and others spend about 80% of their time with high-conflict clients making these mistakes over and over again. Not only do they not help, they make your relationship with your client much more difficult and make them much less likely to improve their behavior. Give Them an EAR Statement™ All people with personality disorders have relationship problems. They should really be called “inter-personal” disorders. They are stuck in a narrow pattern of self-sabotaging interpersonal behavior that triggers those around them to feel anger, fear and desires to get away from them. The effective family law professional can over-ride the urge to fight or flee by learning to give their clients EAR Statements: statements that show empathy, attention and respect. (For more on this, see article Calming Upset People with EAR™ or webinar Calming Upset People with an EAR Statement™.) However, you can be more specific if you think you’re dealing with one of these high conflict personalities: Borderline They really like empathy, so focus on statements that show caring: “I can see how frustrated you are about this situation.” Or: “I know how important this must be for you.” Or: “I feel for you. I want to help.” They also really like attention, so be clear about how available you are or aren’t, so they know what to expect. “I want to give you the attention you need, but I’m not always available on short notice so you can leave a voicemail message or send a short email.” DON’T give a borderline the impression that you are brushing them off. They won’t forgive you for that. Narcissistic They really like respect, so try to include that word at times in speaking with them. “I respect your efforts to resolve this situation.” “I respect your time and will try to work with that.” “You’re a great record-keeper.” You can also use that word referring to yourself, by asking them to respect your schedule, respect your point of view, respect your advice even if they don’t agree, etc. Be careful not to seem disrespectful or belittling of them, or you will never hear the end of it. Antisocial They also like respect, so use that word when it seems to fit. “I respect your success in business.” (There are a lot of antisocial people who succeed in business, but then sabotage themselves later on.) “I respect your desire to do that, but I can’t do that because my hands are tied by the law.” Don’t waste time showing how much empathy you have for them. They don’t care and may try to use your empathy to manipulate you. “If you really cared, you would do such and such for me,” they say. Emphasize their Choices and Consequences With all of these personalities, it helps to focus on the future and what their choices are. This helps them feel empowered and respected. But it also helps to talk about the positive and/or negative consequences of their choices. This is another area where there are some differences: Borderline Emphasize