Abby Tolchinsky and Ellie Wertheim
Abby Tolchinsky and Ellie Wertheim ()

As family mediators, we are often regaled with stories of high conflict divorce cases. “They never could have mediated” is a common refrain we hear from well-meaning friends who share details of protracted divorce litigations and custody battles, each replete with extensive collateral damage, such as a retirement account liquidated to fund a litigation.

In our experience—and contrary to conventional wisdom—cases presenting deeply fraught dynamics and complex fact patterns are routinely resolved in direct negotiations. A shared determination to stay out of court, regardless of what has brought the marriage to its end, often provides a foundation to resolve the issues at hand, regardless of the magnitude of hurt or blame. The parties’ motivation, when utilized skillfully by the mediator in supporting them through the most challenging aspects of their conflict, can help them come to resolution.

How does the mediator identify and work with high conflict parties? At times, it’s nearly impossible not to identify the considerable friction across the table. Interruptions, raised voices, sarcasm and criticism fill the room—the tension is deeply felt by everyone. Other times, the mediator observes a lack a trust and inability to take the other party at his or her word. And, there’s often a deep desire to bring past grievances into the present conversation—and even a need to redress past hurt in structuring the terms for future agreement.

Before we can bring to bear a variety of mediation skills with parties to help them move forward, we must first identify their dynamic and reflect it in the room. We articulate what we are observing, noting how the parties interact with one another and ensure by checking in that we are getting it right. Almost always, they share a long history, and we are new to the relationship—they know themselves and their dynamic best. Interestingly, in our experience, “high conflict” does not always mean screaming and throwing crockery (hyperbole). It can manifest itself by, inter alia: passively withholding information; arriving to sessions unprepared thereby triggering extreme frustration in the more pro-active partner; speaking primarily in terms of blame.

Identifying the dynamic and asking the parties to validate what we are observing provides an opportunity to explore their willingness and motivation to do the work in mediation. In spite of their hurts and triggers, can they work together to come to agreements? Participating in a mediation process may happen at the apex of stress; therefore, full and lasting agreements may not yet be feasible. Perhaps they can contemplate re-visiting some aspects of their agreement based upon benchmarks and after experiencing cooperation while living apart. This sequence may provide a space for hope and for concrete improvement of their relationship dynamic. Perhaps paradoxically, mediation is a forward-looking process that has its roots in the history of the relationship. When the parties are in deep conflict, it is natural to allocate blame to the other.

As mediators, we work to normalize where the parties are while steering them beyond fault and away from the past. With particularly high conflict parties, the process—wanting to air grievances, feel validated and maybe, consciously or not, even stay in the dynamic—supersedes the substantive outcome. In other words, there is often a profoundly deep-seated investment in the dynamic. When we reflect it, we offer a chance to shift away toward something more constructive, as they negotiate.

Just as important to note for the mediator—and at odds with overtly aggressive behavior—we must also concern ourselves with the party who is an avoider, tending to capitulate, avoid ongoing distress or focus on “keeping the peace” in order to get the process over with. In contrast, agreeing, when it follows deep analysis and understanding of one’s priorities, rights and obligations, is an informed, strategic decision to make a concession and move forward. Throughout, the mediator should ask himself: Is the dynamic I am observing rooted in a personality type? Am I observing an entrenched behavioral pattern or is the friction in response to a particular situation?

As practitioners working closely with couples in conflict, we have our own strong internal responses. And, we must notice and acknowledge these responses in order to help the parties—without judging or swaying them. In other words, the mediator remains neutral to the outcome given the reality the parties face; while engaging actively to help them through the process. Just as we verbally reflect the parties, we also notice our own triggers as a means to re-balancing ourselves, allowing more room for compassionate connection with the parties.

Useful Tools and Strategies

In addition to reflecting the dynamic and offering the parties an opportunity to shift how they communicate as they negotiate, we employ a number of other tools with high-conflict parties. It can help to be prepared with some of the following strategies, listed below in no particular order:

• Normalize: Almost by definition, parties who find themselves in your office are in a conflict they can’t resolve themselves. It is likely getting expensive and they are concerned about both the process and the outcome. This can often translate to high-conflict behavior in the room, which is understandable given the stress they are under. It is helpful to make explicit, that this is normal and you are here to help guide them through this challenging moment. A calm professional presence provides reassurance.

• Where there is shouting and interrupting, the mediator might suggest some ground rules for the conversation. This may include obtaining agreement prior to proceeding, limiting each one’s time to speak as well as the scope of what they may speak about. With some couples, we may even use a “talking stick”—only the person holding the stick has the floor—all others are listeners. Yes, this can seem a bit like managing unruly children. With a touch of humor, a relaxed manner and certainly with compassion, it is essential to approach this means of conducting the conversation as merely a suggestion. Prior to proceeding, the mediator must obtain the parties’ buy-in. At the risk of stating the obvious, do not condescend to the clients—rather, provide a suggestion that might help them express themselves, feel and be heard.

• Slow down and take a few breaths all together. See above about buy-in. The mediator is part of the process. When parties yell and interrupt, such behavior challenges the mediator’s ability to conduct the process—and you can say just that. Again, not blaming but rather expressing that you wish to help them but need to be able to hear each party’s perspective.

• Cut off “venting.” It is understandable that parties in conflict who come face-to-face might have a good deal to get off their chests. But this is a goal-oriented process and it is your job as mediator to keep them on track, to try and help them express themselves in a productive manner that moves the process forward and keeps the parties looking to the future rather than the past.

• Depending on your approach and philosophy as a mediator, you might caucus. We have written on this previously. In general, it is our practice not to have separate meetings between parties. With very high conflict parties, however, we might offer it, always with the understanding that no confidences are kept by the mediator. Beware, though, in high conflict mediations, of contributing to a sense of mistrust by conducting separate meetings. We recommend assessing the implementation of the caucus on a case-by-case basis.

• Mediator and author, Bill Eddy, in his book “So, What’s Your Proposal? Shifting High-Conflict People from Blaming to Problem-Solving in 30 Seconds!” (2014), also encourages mediators to keep the parties looking to the future. As mediators, our training and practice entails getting to the core of parties’ interests, values and goals—to look at what is underneath their positions. But Eddy says that, in order to be effective, this must be modified when working with high-conflict parties. Rather than a deep exploration, he asks each party to present forward-looking proposals. The other party may ask questions (but not “why” questions which provoke a rehashing of past issues) in order to better understand the proposal and then may only respond with a yes, no or maybe. While this may strike a mediator as a bit formulaic and surface, the method has been used with high-conflict parties to some effect.

• Use outside professionals in mediation sessions to provide support and to help rebalance a volatile dynamic. Most often in mediation, this role is provided by outside counsel. First, and most important, both parties’ counsel should attend and both should be primed for participating in a supportive manner. Thus, if outside counsel is deeply familiar with mediation (ideally also a trained and practicing mediator) and understands his role to be a supportive one, then he can reflect both clients’ needs and reality test the feasibility of proposed solutions around contentious issues. Calm, supportive professional behavior can help set or shift the tone for negotiations. Similarly, a single neutral professional, such as a financial analyst, may provide support and clear information, thus decreasing the high conflict intensity of the parties.

Conclusion

As a mediator may use tools to tailor the process in the face of high conflict parties, we should come to any mediation expecting that the emotion and dynamic are as much a part of the negotiation as the substantive decisions and we meet the parties where they are.