Mediating with “High Conflict” Personalities—Tips for Attorneys & Mediators

By Leslie King O’Neal

Recognizing High Conflict Personalities

Recapping briefly, HCP is not a medical diagnosis. Rather, it describes a behavior pattern with these four characteristics: (1) a preoccupation with targets of blame; (2) all-or-nothing thinking; (3) unmanaged emotions; and (4) extreme behaviors. Many (but not all) HCP’s have personality disorders.[iv] These behavior patterns present challenges for lawyers representing HCP’s in mediation as well as for mediators trying to resolve disputes where HCP’s are involved. It’s not advisable to tell someone you think they are an HCP. This will likely trigger defensiveness and will impair your relationship with that person.

B.I.F.F.

• Brief—no more than a paragraph, regardless of how long the initial email is.
• Informative—provide information, not opinions, emotions or arguments.
• Friendly—this may be difficult, but just a friendly greeting and closing may help. You want to avoid escalating the hostility.
• Firm—not harsh, but closing the conversation. If a response is needed, close with a simple “yes or no” question. End on a friendly note.

Leave Out the Three A’s:  Advice, Admonishment and Apology.

Unsolicited advice and admonishments tend to increase hostility. Apologies may be misinterpreted as admissions of guilt or validation of the other party’s position. Drafting BIFF responses takes some thought and practice. It’s best to avoid engaging with hostile attacks or comments, being defensive or making threats. Take a few minutes to re-read the response and edit it before pushing “send.”

Pre-Mediation Coaching

While nearly all clients benefit from pre-mediation coaching with their attorneys, this is an essential step with HCP’s. The lawyer (and the mediator) can meet with the client to discuss the mediation process, answer questions, and help the HCP focus on creating the agenda for mediation. Some clients benefit from a using a decision tree or other techniques to consider settlement options before the negotiations begin. (See post MEDIATION AT THE NEXT LEVEL – The Construction ADR Toolbox for discussion of decision science and game theory to develop settlement options).

Mediating with HCP’s

Based on his 40 years of mediation practice, Bill Eddy asserts that the standard “interest based” mediation approach isn’t best when dealing with one or more HCP’s in mediation. Because HCP’s have an Ingrained behavior pattern preventing them from seeing their role in disputes or conflicts, some standard mediation techniques don’t work with them. Rather than asking probing questions or asking about their interests, focus on the future and on solutions. As mentioned before, it’s never advisable to tell someone you think they are an HCP.

Some Do’s and Don’ts When Mediating with HCP’s[vi]

• Don’t Have Opening Statements in Joint Sessions—opening statements focus on past behavior, making HCP’s defensive.
• Do Focus on the Future—have them look at information, proposals and choices on what they can do to manage or resolve the dispute. Limit discussion about the past.
• Don’t Focus on Their Interests—this requires HCP’s to have insight into themselves or into the other party, which usually backfires.
• Do Emphasize Solutions—discuss what others have done in this situation; offer at least three options for consideration. Focus on their proposals for resolving the dispute.
• Don’t Ask about their Feelings— HCP’s may get stuck venting about how badly they feel. Avoid open-ended questions like, “how do you feel?” Keep small talk focused on future plans or non-threatening topics.
• Do Ask Them to Make Proposals—having them think of proposals can prevent them from emotionally reacting to what the other party says.

Takeaways

• Mediating successfully with HCP’s requires using a different approach.
• Pre-mediation coaching is essential.
• When responding to hostile communications from HCP’s, use the BIFF approach.

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[i] “High Conflict Personalities” & Disputes – The Construction ADR Toolbox.

[ii] Mediating High Conflict Disputes (Unhooked Books 2021) Mediating High Conflict Disputes: Eddy LCSW Esq., Bill, Lomax JD, Michael: 9781950057214: Amazon.com: Books; Bill Eddy and Rehana Jamal, Biff for Lawyers and Law Offices (Unhooked Books 2024) The BIFF Method and Avoiding the Three A’s for Lawyers and Law Offices — Unhooked Media..

[iii] Bill Eddy, LCSW, Esq. – High Conflict Institute

[iv] PDs are primarilyinterpersonal disorders. That means the difficult behavior emerges in relation to other people. Unlike other forms of mental illness, most people with PDs don’t know they have a disorder or even a problem. The DSM-5-TR describes ten personality disorders. The personality disorders most associated with hostile behavior are Narcissistic Personality Disorder, Antisocial Personality Disorder, Histrionic Personality Disorder and Borderline Personality Disorder.

[v] Eddy and Jamal, supra, note ii.

[vi] Adapted from: The 4 Fuhgeddaboudits in High Conflict Mediation, High Conflict Institute Blog (10/17/19). The 4 “Fuhgeddaboudits” in High Conflict Mediation – High Conflict Institute