Latest / It’s All Your Fault: High Conflict People / Bringing It to Life #1: Navigating High Conflict Mediation Part Two
Transcript
- Speaker 1 (00:04): Welcome to, it's All Your Fault On True Story fm, the one and only podcast dedicated to helping you identify and influence the most challenging human interactions, those involving patterns of high conflict behavior. I'm Megan Hunter and I'm here with my co-host, bill Eddie. Hi everybody. We are the co-founders of the High Conflict Institute in San Diego, California where we focus on training, consulting and educational programs and methods, all to do with high conflict in today's episode. This is part two with our special guest Elaine Richardson, who's joined us from the uk. She's a solicitor, she's a good friend of HCI and both of Bill and I, and we're just thrilled to have her back to continue discussing. I bring it to life case to make it real to you, our listeners, so you kind of understand what goes through a mediator's mind, what's going through the parent's mind when someone's being bullied in a mediation. Speaker 1 (01:01): What are some things you can do? How do you as a lawyer or solicitor see past the charm? We'll be talking, we've talked about some of that in last week's episode and we'll continue with more of that today and then we'll wrap up with a little more information from Elaine about some things happening in the uk. First, a couple of notes. Send your high conflict related questions to podcast@highconflictinstitute.com or on our website@highconflictinstitute.com slash podcast where you'll also find all the show notes and links. I want to say thank you to you, our listeners or being faithful. Our numbers just keep growing and we're thrilled about that, so send us your questions. We'd love to hear from you. Speaker 1 (01:46): Alright, let me just give a quick introduction again of Elaine. We gave a big introduction last week, so I'll shorten it up. You are a specialist in family breakdown separation and conflict resolution, one of the tops in the field, I would say Elaine's also a family mediator and an experienced family solicitor slash lawyer who has been involved in family law for over 30 years and has done so much more. We'll put the full bio for Elaine in our show notes and you can, if you listen to last week's episode, she's done a lot and you'll be hearing from her again on our podcast. Okay, so the case that we started to bring to life last week involved separating parents in their forties, married 10 years, have a couple of young children, and there's a delay in getting the whole process finished by someone who has a high conflict personality. Speaker 1 (02:42): So they're delaying the sale of the home, getting the divorce finished up. We talked about hybrid mediation today we're going to start with what does a lawyer solicitor do or any professional for that matter when let's say you meet with your client. I think this is just a person with a regular operating system. They come in and say, look, I'm in this horrible, horrible high conflict case. My ex is the devil, and I believe based on some information I read in one of Bill Eddie's books from the High Conflict Institute that they have, my ex has a high conflict personality. So I think we all can agree that many professionals will automatically believe this information, believe their potential client or current client and fight like mad or their client believing exactly what their client's saying, but we need to look at things a little bit differently. So Elaine, how do you do that as a lawyer slash solicitor or as a mediator even? Does it come up in mediation where an accusation is made that the other party is the difficult one or has a high conflict personality? Speaker 2 (04:00): It certainly does come up in mediation and I often think that as a mediator I'm really privileged to be sharing some really intimate details about a couple's relationship, but it does give me, I think, a distinct advantage when I'm working as a mediator because I meet with both people in a separating couple. Whereas when I work as a lawyer, I'm only meeting with one person, and so that makes life a whole lot more difficult because I know working as a mediator that I stand back and I had it happen to me so many times where the first person has described the second person as effectively being very high conflict. And then I come to meet with the second person and I find myself almost checking my notes, have I got the wrong person here? Has somebody else turned up on the call? Because this person doesn't appear to be in any way, shape or form the way that the first person has described him or her to be. Speaker 2 (05:11): So that's when I can start to formulate my own judgment. And I of course come across a lot of domestic abuse, domestic violence, and so it's really important I know to start with an assessment which runs like a thread throughout all of your work with the separating couple so that you are always open to the possibility that whatever theory you have or whatever your bias may be, that you are open to change your mind. I think that's really important to say, and I know that Bill has a theory, this theory about the three possibilities that I use a lot, so I'll hand over to him to explain that. And Speaker 1 (05:56): I've also Speaker 3 (05:56): Learned the hard way by a lot of years of not quite getting it right the first time. And it's not unusual. I've had the first person in mediation say, well, it's the other person is a high, you got to watch out bill, you're going to be bamboozled by them and all of that. So the approach that I recommend is that you entertain three possibilities of the case. I call it three theories of the case or three possibilities of the case. So when person A says person B is acting badly, maybe a high conflict person, then one possibility is it's true. You have to consider that domestic violence, child alienation, alcoholism, addiction, whatever it is, you have to consider that. It may be true, they may be a con artist, they're going to bamboozle you and need to be careful, but you also have to consider the possibility it's the other way around that they're projecting that they're saying the other person's doing what they're actually doing. Speaker 3 (07:04): So it's not person B at all. They're totally innocent of this kind of bad behavior and it's person A who's making these allegations. And I've seen this in mediation just like you described Elaine, where it turns out it's more the other way around. I've become a little more skeptical of the first person to tell me that the other person's a problem because it's not unusual that it's that person instead of the other person. The third possibility is that they both are high conflict, they're both acting badly and that's going to be a bit rockier as a mediation. You don't have one person that's able to manage themselves pretty well, I believe. Now I wondered about this when I first became a lawyer is whether there's some point at which you really know and what I would say now after 40 years as a mediator, 12 years as a therapist, and 30 years as a lawyer, that the best approach is to believe, I will never absolutely know for sure I always have to have an open mind. Speaker 3 (08:21): And I like to say I don't trust what anybody says more than 95%, including myself, because I never know when my own brain is playing tricks on me or my own brain says, oh wow, I really like this person. They couldn't possibly be a jerk, and yet they turn out that they are. So I think we really have to have an open mind, consider these three theories or possibilities of the case even as an individual lawyer. So when you first the client and they tell you these horrible things about the other person is to be empathetic sounds like it's a hard situation. And to make notes and keep an open mind. I've come to with my consultations, tell people out loud that that's how I approach this. I say, I've never met you before. I'm going to work with you for an hour, give you some suggestions, but I don't know, maybe you're the more difficult person. And so I want to tell you how to behave regardless of who you are. And I hope that people get that from my books that they should behave regardless of whether it's the other person or themselves. And it may be is a good chance it's the other person, but always have an open mind, Speaker 1 (09:49): Extraordinarily valuable advice. And I think any of us can get caught in that trap of believing. Sometimes we want to believe a recent case comes to mind where a large group of people believe that the actual HCP is a saint, the word saint is used. Well, this person's just a saint, they have no idea. This person in the background is abusing the people in their care and destroying reputations and just extraordinary high conflict behavior. So Elaine, what do you do whether you're in the role of a solicitor slash lawyer or as the mediator when you figure out at some point, let's go first with the solicitor role that your client is the one with the high conflict personality. And then in mediation, if you get it backwards, what do you do at that point? Speaker 2 (10:44): If you believe that your client as a lawyer is high conflict, Speaker 2 (10:52): I would hope that you have set out your boundaries very clearly. And we touched on boundaries, didn't we in the previous conversation, but it's really important I think as a lawyer to have boundaries. And it's quite interesting, I think when I look back over my own career, how my boundaries have probably increased and how important it's actually to have boundaries about even the little things. So I'm thinking in particular about letting the client know when you are available to take calls, how long it will take you to respond to emails, that it may not be an instant response, that you work between certain hours, that you don't go above and beyond the call of duty because it tends to be those clients that we go above and beyond the call of duty for. I'm afraid to say that can turn out to be the high conflict ones. Speaker 2 (11:47): And of course because they bamboozled you with charm, it can be very easy I think to fall for that. As a mediator, I tend to find that what happens is obviously I treat people equally. I set my boundaries. So it's my process, very much my process and their decision-making and I'm really clear about that. But I think it can often become apparent that perhaps one person is high conflict when you almost push them a bit into an uncomfortable place where they don't want to be and you challenge them and then all of a sudden I often think about it as the real persona will suddenly the head will appear above the parapet and you'll think, oh, right, okay, I understand now. And there can be quite a real realiz that personality in waiting. Yep, there's the personality in waiting, but this may not happen straight away. And even with my experience and my training, and I'm sure Bill would say the same, you can still be completely taken by surprise and it can take some time to assess. But I think I do feel very sorry for the victim of the high conflict person or the bullying person because they may not have realized until they've come into mediation or until they've gone to see a lawyer and so on top of everything else that they're having to deal with, this can be an awful lot to take on board. Speaker 3 (13:28): What I find as a lawyer with clients is wanting to teach them how to be successful and not say you're being a high conflict person, you're acting badly, but just say, let me give you some tips about how we can be most effective in this case. One thing I hope we both agree on is that we'll check out rumors about each other. So if somebody tells me you're acting badly, I'm going to check with you if you're really doing what I'm being told by the other lawyer or the other party, if my client has been in trouble, for example, let's say there was a domestic violence incident and it's my client, I say, you want to get help with this, you want to learn how to manage your emotions and you want to learn and so agree to go to a group counseling for domestic violence. Speaker 3 (14:28): And I remember one case I had where I said, a 52 week program might seem long, but you're going to learn so much from that that will help you in the future. And a year later they said, I did learn a lot even though I didn't think I needed that. So I think it's kind of coaching the client on good behavior, especially if someone else says they've acted badly, he can say, well, someone else, the court has made a decision that you acted badly. So I don't know, maybe the court got it wrong, but let's work with the possibility that that's true and what you can do to help yourself teaching clients to choose their battles. Because high conflict people get in fights constantly, verbal fights, sometimes physical, and so teaching them choose your battle, don't react to everything the other person says, you're a jerk, doesn't mean you're a jerk and doesn't mean you have to react to it. Speaker 3 (15:31): You can choose which things to respond to and which not. So I think as a lawyer there's things you can do if your client is like that. One more thing I want to add. Sometimes let's say I have the wife, she comes in and says, my husband's a narcissist. And I'll say, well, I'll never know, but let me tell you, you don't want to say this publicly because let's say you want to say that in court or you want to say that to mediator or other people. My experience is that most professionals figure if one party has a personality problem, there's at least a 50% chance the other party does as well. And I take polls at seminars and people say, is it one? Is it both? And it's about 50 50. So if you tell people your husband's a narcissist, immediately people are going to think there's a good chance that you have a problem. And of course the men come in and say, my wife's a borderline, she's got borderline mood swings and such. Don't be real excited about bending those words about, in fact, we don't want you to use them. Let's focus on behavior and what you can do. And if this is true, then you want to behave well rather than focusing on them. Speaker 2 (16:54): Of course, the other problem bill with that is that if somebody accuses the other person of being high conflict, then the whole thing is going to kick off. And if their parents, this is going to be a disaster as far as their children are concerned. So if you've married a difficult person, that difficult person doesn't change and you're then divorcing a difficult person. And really what you need more than anything else are tools and skills to help you manage the situation. And I remember you saying interestingly about using Biff in communication, brief, informative, friendly and firm that where one person starts using it unbeknownst to the other person, then you can get this sort of mirror behavior back Speaker 1 (17:49): Where the other Speaker 2 (17:49): Person then starts using a similar type of communication without even realizing it, which is fascinating. Speaker 3 (17:57): Yeah, you're absolutely right. And sometimes you can say to your client, well, if you're concerned about the other person's behavior, be a role model for good behavior and this is how you could do that, like the Biff emails. So I'm always pleased when I've had a client as a lawyer at the end of the case where they say, I've learned a lot and my spouse told me they wish that they had had me for a lawyer. That's when I know I've done well. Speaker 1 (18:30): Oh, absolutely. That's brilliant. I love that. Let's take a quick break and we'll be back in 30 seconds. Speaker 1 (18:45): All right, we are back to finish up talking about one last piece of this, bring it to life case, and that's regarding managing the relationship between lawyers. As you know, bill, we've had so many requests over the years on training for handling high conflict opposing counsel, I would say in almost every seminar involving lawyers, I get that request, somebody wants some information about it. You've written a book just recently, Biff for Lawyers. So let's talk about that. And we've just finished up talking about Biff maybe between parents or client lawyers or clients and mediators, but how about Biff for lawyers? And it could be a lawyer using Biff for clients or for other lawyers. Speaker 3 (19:31): Yeah. Well first I want to thank Elaine for writing a nice review in the front of our book, Biff, for lawyers. First of all, I think it's important to know it's the personality, not the position that really defines what you need to do because a high conflict lawyer is like a high conflict client is like another high conflict professional. Every profession has some high conflict people. And the thing is to approach it in terms of their personality. I like to think of using what I call the cars method, connecting, analyzing options, responding to misinformation and setting limits with high conflict people and high conflict professionals with high conflict lawyers. I try to connect with them using air statements, give them respect, empathy, attention and respect. I got a lot of letters coming out all at once, but if people have been listening to our podcast, they can then follow up on those. Speaker 3 (20:34): But the idea of telling the other lawyer, I respect your concern or I respect your efforts or I understand that can be frustrating. And I've had the beginning of a settlement conference talking to the other lawyer, their client is late and they say, my client does this a lot. Instead of thinking, oh, I can get an advantage instead is saying, yeah, I know what that's like. That can be really frustrating. Sorry to hear about that. So try to connect with them. It took look at choices. Here's our choices as I see them respond to misinformation. High conflict lawyers often don't know their case very well, but they're good at sounding loud. They know what I've been in court, we're a lawyer saying my client's coming around to the house and that maybe a restraining order is needed when in fact there's absolutely no evidence of that. And that's clear. So responding and then setting limits. So the relationship between lawyers as a mediator have some of those thoughts. Speaker 2 (21:41): Oh, it was just what you said, bill, just now I was thinking about a lawyer's saying, which is a terrible saying, but it goes along the lines of if you can't be right, be wrong at the top of your voice. Speaker 3 (21:55): Yeah, let me add to that. What I learned in law school from one of my instructors was if the law is on your side, pound on the law. If the law's not on your side, but the facts are on your side, pound on the facts. And if neither the law or the facts are on your side, pound on the table. Speaker 2 (22:19): Brilliant. Love it. Yeah, completely agree. And I think lawyers obviously have a particular reputation and they're in the field of advocacy, of arguments of conflict really in their working lives. And maybe there's something about particular personalities being attracted to doing particular professions such as law. But I think going back to the case study, it's really tricky as a mediator when you are working with the two lawyers and they don't have the best of relationships and it's thinking about where is it, I suppose easier to talk to your mediation clients about skills that they can acquire, which will help. It's a bit more of a challenge, isn't it? Trying to propose and suggest that to lawyers bill. Speaker 3 (23:17): Yeah, I think to me is fiddling with the structure of things. So I think it's good what you mentioned the idea of meeting with the lawyers before you start the mediation so you can lay out your process and expectations and that often helps center things a little bit, even for a high conflict lawyer, what I find and I found over the years is fiddling with things like meeting in the middle of the mediation with the lawyer separately, meeting with them together with each other, with me and meeting separately with each so I can kind of talk through things that they can do. I've had a case settle because one of the lawyers was operating, this was a civil mediation on an old regulation book. It was a utility mediation and it's like, oops. And they realized the new regulation made the outcome clear cut and then the lawyer said, bill, help me communicate this to my client. Speaker 3 (24:24): So working as a mediator between lawyers, meeting with them separately and occasionally I've asked the lawyers if I can meet separately with your clients, just the clients together. And I remember one case where having them meet together convinced one of the parties, I think it was the wife, that her husband just was not going to change. And as long as the lawyers were there, she hadn't absorbed that and they met together and she kind of poured her heart out to him and he was so cold that she, okay, I'm done here, I can move on. And so I think fiddling with the structure sometimes can help. Speaker 2 (25:05): I think that's amazing. And that's what I love about mediation is the flexibility of it and the possibility that you are always thinking out of the box really aren't you? And trying to think of a way to manage things better and to see what would work in particular situations. But I think that's a real strength of the process is the flexibility. Speaker 3 (25:28): So just coming back to this case, it seems like all of these are possibilities of what a mediator can do in dealing with an intransigent party, dealing with difficult lawyers, dealing with recognizing, I think that there's a high conflict person helps you realize you're not going to push for insight, you're not going to overemphasize the past, you're not going to open up emotions and you're certainly not going to tell them, I think you're a high conflict client, straighten up. That never works. So I think hopefully this discussion addresses a lot of possibilities. And just to put in a word for mediation, it used to be people thought you couldn't have high conflict cases in mediation and it's quite the opposite. And I'm very encouraged by Elaine's not only enthusiasm, but implementing so many of these ideas and having them work. So since I've now stopped doing the mediations myself, I want to give you all the support and encouragement I can to hang in there. Thanks. Speaker 2 (26:42): So that kind of wraps Speaker 1 (26:42): Up our bring it to life case, our very first case in this series and we really hope listeners that this is helpful, whether you are someone going into mediation or maybe you've even been in mediation before and now maybe have an deeper understanding of why things happen the way they did. If you're a mediator or a lawyer or solicitor, hopefully you've learned some tips today. We'll put a lot of information in the show notes, a lot of links in there for you as well. But let's talk now and switch into something new that's happening in the UK in family law. So Elaine, what is coming at the end of this month? Speaker 2 (27:25): Thanks Megan. At the end of this month, we have a rule change, a court rule change Briefly the headline news about the rule change. The rule changes are that there are going to be fewer reasons to excuse yourself from attending non court dispute resolution. So in other words, all of those processes including mediation, early neutral evaluation, there are many processes that don't involve going to court. So the rule change will tighten up so that people have fewer reasons to excuse themselves from doing that. Tighter definitions of what a court counts as an attempt to settle. It wouldn't, for example, be just a couple of letters between lawyers, early scrutiny by the court that people have attended mediation or whatever other non-cost dispute resolution and now requiring proof to support all any claimed exemptions. And there will be constant court scrutiny we're told of views on non-cost dispute resolution. Speaker 2 (28:33): And that's going to be done by completing a new standard form before all hearings. The courts will also have the power to adjourn a case for non court dispute resolution to take place and there will be stronger costs orders in financial proceedings for a failure to consider non court dispute resolution. That's the background to it coming into force at the end of this month. And just to strengthen that approach, there was a case in January this year, XVY as it's known where Mrs. Justice, who's one of the leading family judges really confirmed that this is going to be the approach of the court. This was a case that was a multimillion pound case and although both the parties said they weren't opposed to going to non-core dispute resolution, her ladyship Mrs. Justice Nells stated that their failure to engage in non court dispute resolution prior to issue of both sets of proceedings was utterly unfathomable, which is fantastic, utterly and fathomable. So that's what's happening here in the UK and it'd be really exciting to see how it actually rolls out. Maybe I can give you an update on that. Just to finish off with Biff, I just wanted to let you know that we have a book club where we meet online and the next book in our book club is Biff, so I'll be very excited to talk about that. We're actually talking about the Red Biff book, which I believe was the first one, but you've got many more now in the series. Speaker 1 (30:17): Oh yes. We can't stop bill from writing particularly about something so popular. And first of all, I want to say Elaine, awesome that you're using Biff in the book club. We're excited about that, so thank you very much. So Bill has written the original Biff and the second one was Biff at Work, which I co-authored. The third was Biff for co-parent communication, which is co-authored with Annette Burns and Kevin Chafin. Next was Biff for lawyers with Rihanna, Jamal, and the next one in the pipeline that hasn't been released is Biff for Healthcare. Speaker 2 (30:53): Wow. That is Speaker 1 (30:54): Quite Speaker 2 (30:55): Some list of Biff books and if I can tell you that just in my own family, we adopted Biff a few years ago and so we're all using it very successfully. Excellent. Speaker 1 (31:07): It's absolutely such a game changer. Such a game changer. And yeah, Biff is wonderful. So thank you for bringing that up. I also wanted to ask you about what you're doing with Shared Parenting Scotland. I know you've been trained as a coach, so could you tell us a little bit more about that and what's happening in the uk? Speaker 2 (31:26): So it was very exciting to be trained as a coach with Shared Parenting Scotland, which is a wonderful charity, great to work with those parents. So they have the option of signing up to 10 online sessions, which are prerecorded sessions that Bill has done, and then they also have the option of meeting with a coach up to three times for 90 minutes a time. So that's when we are training people in the new Ways for families skills about managing their emotions, about thinking flexibly, about the use of Biff, about the use of empathy, attention and respect statements and about managing their behaviors and checking on themselves that they are using those skills. So it's fantastic to use it within the charity, but it also of course translates into the work that I do with everybody who comes into mediation with me. So I frequently refer to those skills and of course they're across the board so they work not only with high conflict people but with people who are not high conflict but have to manage, say a high conflict parent. It's all really useful stuff and I often think that with high conflict people, they may never have been told that it is an expectation that they do manage their emotions, that they behave reasonably and that they think of other options, not just one option, not just my way or the highway. So it's really exciting. They haven't Speaker 1 (33:02): Thought of that themselves, right? Speaker 2 (33:04): No, they haven't thought about it. This May the first time that somebody has said that to them, which is really interesting, I think. Speaker 1 (33:12): Yeah, and it may take them a bit to get some insight, but that's why we do a lot of setting limits and imposing consequences. So if you're a parent anywhere in the uk, you can go to Shared Parenting Scotland, we'll have that link in the show notes to take that class, get the coaching. It's just fantastic. Wonderful coaches there. If you're a solicitor in and anywhere in the uk, you can go to Shared Parenting Scotland. Don't stay away just because it has Scotland in the name, they're available all over. So I think you'll really appreciate it and see a difference in your clients after they've taken the New Ways for Families class through Shared Parenting Scotland and gotten some coaching. Alright, well with that, we need to wrap up this wonderful time we spent with Elaine. Thank you listeners for joining us. Thank you, bill. Thank you Elaine, so much for joining us. Did you have any last thoughts before, and this won't be your last time with us, obviously on the podcast, but any last thoughts today? Speaker 2 (34:18): It's just been delightful and amazing to join you with this podcast because I have listened to it for, well, I think you started it back in 2021. I've been an avid listener since then. My usual listening time is in the car when I'm driving long distances to see family, and you've taught me so much. And what I know is that the skills work, I've put them into practice and they work, and it's just amazing to think of this journey and that you've invited me onto the podcast. I'm really honored. Thank you. How Speaker 1 (34:57): Are we? Speaker 3 (34:58): Thank you, E Elaine. It's encouraging working with you and seeing your success and the learning curve and it really, you're right, it's really about skills people can learn, succeed, and have a happier life. Speaker 1 (35:19): All right, well thank you again. Listeners, send your questions to podcast@highconflictinstitute.com or submit them to high conflict institute.com/podcast. Next week we'll be talking about workplace conflict, particularly of course in relation to high conflict. So join us at that time and we'd love it if you tell your friends about us and your colleagues and we'd be grateful if you'd leave us a review. Until next time, keep learning and practicing these skills. Be kind to yourself and others while we all try to keep the conflict small. It is All Your Fault is a production of True Story FM Engineering by Andy Nelson. Music by Wolf Samuels, John Coggins and Ziv Moran. Find the show notes and transcripts@truestory.fm or high conflict institute.com/podcast. If your podcast app allows ratings and reviews, please consider doing that for our show.