Key Principles for Asking Questions in High Conflict Cases
©2023 Bill Eddy, LCSW, Esq. High conflict cases usually involve allegations of very bad behavior, debates over who is acting badly, and what should be done about it. They become high conflict because: facts are few, emotions run high, more and more people become involved (who are often emotionally hooked but uninformed), and two opposing sides emerge. The dispute escalates and prolongs without resolution. This can occur in families, in divorce cases, in the workplace, in communities, online, in the political world, and certainly in legal disputes. High conflict seems to be increasing. These cases usually include at least one high conflict person (HCP) who tends to distort information, sees things in all-or-nothing terms, may have difficulty managing their emotions, and tends toward extreme behavior that most people would never engage in. These cases also tend to involve at least one professional who becomes a negative advocate for an HCP. This article addresses questions that all professionals should ask so that they don’t become negative advocates and so that they can calm down and ethically resolve high conflict disputes with knowledge and compassion. Professionals as Negative Advocates Negative advocates get emotionally hooked by the extreme fear, anger, or blame expressed by HCPs and they believe the HCPs’ distortions of information. They are often persuaded to see the HCP as a victim of someone else’s bad behavior, when in fact the HCP is often the primary perpetrator of such behavior. HCPs get it backwards, then they may persuade others to get it backwards. Their negative advocates may have high conflict personalities themselves or may be relatively new professionals or susceptible to the emotions of high conflict people who can be very persuasive blamers. Therapists, mediators, lawyers, judges, human resource professionals, and others are often exposed to such high conflict people and need to be aware of this risk. Negative advocates tend to jump to conclusions and pursue their solutions with an intense passion because they are emotionally hooked rather than fully and accurately informed. Yet professionals are (or should be!) trained to seek full and accurate information before reaching conclusions about what is going on and what should be done, while always keeping an open mind. Unfortunately, most professional training does not include watching out for the pitfalls presented by clients with high conflict personalities. Starting with an Open Mind Professionals (or any people) who get involved in a high conflict dispute should keep their mind open to at least three possible explanations or theories of the high conflict case, which look the same on the surface: 1. That one person or “side” in the dispute is in fact engaging in very bad behavior (Person A).2. That Person A is not in fact acting badly at all, and the other person or “side” is (Person B).3. That both people are acting very badly. Such an open mind will prevent what scientific researchers call confirmation bias (see my article in our February 2023 High Conflict Institute newsletter). Confirmation bias tends to prevent people from asking open-ended questions and checking alternate theories of what is happening. This “confirmation bias” is a well-known phenomenon in which more attention is paid to and there is better recall of information that is consistent with pre-existing beliefs. More weight is also given to evidence that confirms existing beliefs. Evidence and information that does not support pre-existing beliefs is discounted, forgotten, and taken less seriously. Nickerson has referred to confirmation bias as possibly the single most problematic aspect of human thinking because it is so powerful in preventing people from revising incorrect beliefs and assumptions. (Lorandos and Bernet, 217) This is just as important for mental health and legal professionals as it is for scientific researchers. Failure to remain open to alternative hypotheses that are believable (on the basis of prior knowledge) can pose serious risks to obtaining a scientifically adequate answer. This point is just as true for forensic investigators and therapists as it is for scientists. Failure to test an alternative to a pet hunch can lead interviewers to ignore inconsistent evidence and to shape the contents of the interview to be consistent with their own beliefs. (Ceci and Bruck, 80) Young Children: Did That Really Happen? Take, for example, cases involving children. Experts in interviewing children say that several questions should be asked, otherwise the results are unreliable. This was found in a major study of child sexual abuse allegations that sent day care center workers to prison for forty years in the 1990’s. Faulty interviewing techniques were determined to be the cause of their statements and not abuse (and the workers were released). The interviewer does not challenge the child who provides abuse-consistent evidence by saying things like, ‘You’re kidding me, aren’t you?’ or ‘Did that really happen?’ The interviewer does not ask questions that might provide alternate explanations for the allegations…. When children provide inconsistent or bizarre evidence, it is either ignored or interpreted within the framework of the interviewer’s initial hypothesis. In short, interviewer bias can be found wherever an interviewer thinks he knows the answers before the child divulges them. Ceci and Bruck, 79-80. Since that quote was published in 1995, interviewers have refined their questions to be less overtly challenging, focusing on offering alternative explanations. Resistant Children: Alienation vs. Estrangement A growing problem today is when a child resists or refuses contact with one of their parents during or after a separation or divorce. Is it because the child was abused by one parent or alienated by the other parent? This typically begins between about 8 and 12 years of age, as the child’s brain is going through dramatic changes and subject to intense emotional influences, such as an angry parent—which can push a child to resist that parent (realistic estrangement) or push a child to agree with the angry parent to calm them down (alienation) by joining them in disparaging the other parent. In such situations, it is essential that the person evaluating these claims and interviewing the
Confirmation Bias: Getting it Backwards in High Conflict Disputes
©2023 Bill Eddy, LCSW, Esq. Confirmation bias is a scientific and psychological term that needs to be considered when anyone is dealing with a high conflict dispute, including professionals and the individuals involved. It basically means that a person jumps to a conclusion about what is going on and then only looks at and believes information that confirms their original conclusion—even when it’s wrong. They ignore contradictory information and interpret vague or irrelevant information to fit into their theory of what is happening. This is why responsible scientific researchers are required to look for evidence that may disconfirm their theory and prove a different theory, as well as information that supports it. Unfortunately, most conflict resolution professionals (lawyers, mediators, judges, therapists, and others) don’t know the importance of confirmation bias and often get their cases backwards when dealing with high conflict people who are often persuasive blamers. This article addresses what professionals and individuals in high conflict disputes can do to avoid confirmation bias, including four proposals to significantly improve accuracy. To give some context, the following three examples demonstrate the serious consequences of confirmation bias. The “Abusive” Father When I graduated law school in 1992 in San Diego, there was a big case in the news about a father who was charged with sexually abusing his 8-year-old daughter. The father vigorously denied this, and the mother vigorously defended him, so the daughter was placed in foster care. After more than a year in foster care while the father’s trial was pending, the daughter finally told a therapist her father did it. After over two years in foster care and individual therapy, the girl was going to be adopted out. Almost all professionals, on both sides of the case, believed that the father must be guilty and were irritated with his unwillingness to confess. Then, shortly before trial, the deputy District Attorney discovered that DNA evidence ruled out the father as the perpetrator. From the beginning, the daughter had told this “crazy” story of a man coming into her bedroom window, taking her out, sexually abusing her, then putting her back in her room. Of course, everyone thought she was just protecting her father, who was an obvious suspect. Except that the girl’s story turned out to be true! Another man was found guilty of the same behavior in the same neighborhood around the same time period with four other young girls. Guess what! His DNA matched the girl’s clothing. This was a case of confirmation bias, which cost county agencies approximately $3 million in legal settlements for how they mishandled the case. Around that same time, the American Psychological Association published a book titled Jeopardy in the Courtroom. They addressed an insidious form of confirmation bias called interviewer bias which influenced children to make false “disclosures,” such as the girl did in the above case. Interviewer bias characterizes those interviews where interviewers have a priori beliefs about the occurrence of certain events and, as a result, mold the interview to elicit statements from the interviewee that are consistent with these prior beliefs. One of the hallmarks of interviewer bias is the single-minded attempt to gather only confirmatory evidence and to avoid all avenues that may produce negative or inconsistent evidence. Thus, while gathering evidence to support his hypothesis, an interviewer may fail to gather any evidence that could potentially disconfirm his hypothesis. [1] Two “Bad” Employees I am aware of a few cases like the following in the workplace, in which a conflict between two employees is assumed to be contributed to equally, so that they both get fired with little investigation. For example, a few years ago two employees started getting into perpetual conflicts. Each complained to their boss that the other was bothering them and starting fights. The boss didn’t have time to figure this out, he said, so one day there was a physical fight and he assumed that both parties must be at fault—so he fired them both! In a lawsuit, it became clear that one employee had consistently bullied the other employee who was a member of an ethnic minority group. The targeted employee complained to superiors, but all that was done was a lecture to both parties equally to behave better. It was unclear who started the physical altercation, but it was clear to witnesses that the situation leading up to the fight was bullying of the minority group member. He brought the lawsuit based on unlawful discrimination. However, the history and inaction of the company didn’t matter. Physical fighting (which they both admitted to that day) violated the company policy, so that the company was allowed to simply fire them both. Case closed. The lawsuit against the company was dismissed. [2] In many countries, including the United States, hiring and firing is “at will,” meaning that employers can fire both parties even if one is primarily responsible for a problem. Bullying is not illegal in the workplace in the United States. An exception against firing at will is when there is discrimination against a member of a group protected from discrimination, such as ethnic minorities, gender, age, and so forth. However, in this case, even though one was repeatedly bullying a member of a minority group, on that one day they both broke the rule about no physical violence, so the company was free to fire them both. This is a different kind of confirmation bias, in which the presumption is that both parties are equally at fault and should be equally punished, when the full evidence pointed to one person. The “Meddling” Mom In 2010, in a small California city, a mother went to court to get a restraining order against the father of their infant son, about 9 months old. The mother said the father was depressed and angry about her separating from him. He had sent her a story he wrote about killing their son. She sought a temporary restraining order that would require supervised contact for the
Truck Convoy Protest in Ottawa: A Missed Opportunity for High Conflict Resolution?
Truck Convoy Protest in Ottawa: A Missed Opportunity for High Conflict Resolution? ©2023 Cherolyn Knapp, B.Comm, LL.B, Q.Med In this time that some say is characterized by polarization and extremism, when a large group of people assemble to make an ideological point, it can be seen as an important political protest or a dangerous mob, depending on your perspective. Highly inflamed protests can take on some high-conflict personality characteristics: emotions can be unmanaged, behaviour can be extreme, thinking can be very all or nothing, and there is a lot of blaming and accusatory rhetoric. It is worth considering how HCI’s conflict resolution techniques could be of use in resolving this type of situation. Background: “Freedom Convoy” Protests Take, for example, the “Freedom Convoy” truck protests that entangled Ottawa, Canada starting in late January 2022. The stated purpose of the convoy was to protest social restrictions and vaccine mandates that had been in effect for almost two years due to the COVID-19 pandemic. In other parts of Canada, blockades prevented flow of traffic and commercial goods across primary border crossings between Canada and the US. For more than three weeks, a convoy of big rig trucks and large vehicles clogged the downtown streets of the Canadian capital. Traffic was cut off, there was a constant cacophony of honking and noise, residents reported harassment from convoy protesters, and businesses were obstructed from operating. There was tremendous public pressure to eject the protesters. Emergencies Act Powers Invoked In mid-February 2022, the federal government invoked temporary emergency powers under a national security law that allowed the government to ban certain protests, prohibit certain gatherings, commandeer tow trucks to help police remove vehicles, and freeze assets being used to fund the protesters. The legislation that allowed the Canadian government to take those special steps also required a public inquiry into whether the use of the special powers was proper, which took place in late 2022. Public Hearing Testimony: “Engagement Proposal” At some point during the public hearings, it was reported that there had been a proposal to have federal government officials meet with some of the convoy organizers about a week and a half into the protests. An idea was discussed between Rob Stewart, then the federal deputy minister of Public Safety, and Ontario Provincial Police Insp. Marcel Beaudin, who oversaw the provincial liaison team during the convoy protests, to have representatives of the federal government and the City of Ottawa meet with the core leaders of the Freedom Convoy movement to convince them to leave the capital or relocate. According to public hearing testimony, the idea was brought to cabinet ministers but never taken up. Here’s what the CBC reported about the proposal: Commission counsel Shantona Chaudhury asked Stewart if he thought, with hindsight, the proposal would have had any effect. “I only know what Insp. Beaudin was telling me, which was that he believed it was worthy of consideration,” Stewart said. ”If I were to push it, I would say I had the feeling that it was a very low order of probability that it would have had a material effect because the protesters had been in Ottawa in a determined way for an extended period of time.” Stewart said there were also different factions within the convoy movement. Beaudin, who testified before the commission last month, said he thought the plan would have allowed the protesters to feel heard. In a Feb. 6 email, he told the Ottawa police that “any efforts for communication with MPs, [Deputy Ministers or Assistant Deputy Ministers] may allow the group to save face, get a win and go home.” ”Many people are tired and probably looking for an exit strategy,” Beaudin added. Stewart said the idea — known as the “engagement proposal” — was discussed with his counterpart in Ontario and made its way to Public Safety Minister Marco Mendicino, Emergency Preparedness Minister Bill Blair and RCMP Commissioner Brenda Lucki. According to an interview he gave the commission in September, Stewart said it was not easy for the government to figure out how the proposal would work in practice — and some confused it with a negotiation. He added that the RCMP Commissioner Brenda Lucki was reluctant because she thought enforcement could work and believed the Mounties could handle the protests. Beaudin said that on Feb. 13, the day before the Emergencies Act was invoked, Stewart wrote to him saying that he could not secure a commitment from the government to meet with the protesters. [1] When groups with opposing ideological views are pitted against each other, some say the only approach is to be adversarial, defend your ground and go on the offensive when required. Others say that the only way out of an impasse between camps who want nothing to do with each other is through listening, creative problem-solving, identifying common ground and negotiating the path forward. In this case a senior police representative saw the value in people who are shouting loudly to feel heard and he persuaded a senior government bureaucrat that the idea was worth bringing to the cabinet. The situation was very inflamed. Unfortunately, other senior government officials and politicians couldn’t see the pathway into that opportunity. They had no idea what it could look like and they didn’t want to be seen to be negotiating with people who were considered to be extremists. High Conflict Resolution in Protest Situations In situations of high conflict, effective dispute resolution only happens when we can all access the parts of our brains that perform complex problem solving and productive communication. We must get out of reactive mode and into thinking mode. Expressing empathy, attention and respect to people whose emotions are running very high allows them to feel heard, become more calm and communicate about options to solve the problem, rather than continuing to escalate. When we feel heard, we are all more able to problem-solve. In Calming Upset People with EAR [2], Bill Eddy recounts an interaction involving a police officer who used EAR statements in assisting to bring