Latest / It’s All Your Fault: High Conflict People / REBROADCAST: 10 Paradigm Shifts of High Conflict Mediation with Guest Michael Lomax

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REBROADCAST: 10 Paradigm Shifts of High Conflict Mediation with Guest Michael Lomax · It’s All Your Fault: High Conflict People

• Speaker 1 (00:05): Welcome to It's All Your Fault Untrue Story fm, the one and only podcast dedicated to helping you identify and deal with the most challenging human interactions, those with someone who may have a high conflict personality. I'm Megan Hunter, and I'm here with my co-host, bill Eddie. Speaker 2 (00:21): Hi everybody. Speaker 1 (00:22): 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, we are joined by Bill's co-author of the mediating High Conflict Disputes book. Michael Lomax is one of our speaker experts here at hci. What they're gonna talk about today are the 10 paradigm shifts of high conflict mediation. But first, a couple of notes. If you have a question about a high conflict situation, please send it to podcast high conflict institute.com or on our website@highconflictinstitute.com slash podcast, where you'll also find the show notes and links. Please give us a write rate or review and tell your friends, colleagues, or family about us, especially if they're dealing with a high conflict situation. We're so very grateful to all of you for listening. All right, so welcome Michael Lomax to the podcast. Speaker 2 (01:31): Thanks for having me. Great to be here. Speaker 1 (01:33): Michael is an attorney and mediator based in British Columbia, um, Canada. So welcome all the way from up north. Speaker 2 (01:42): Oh, thank you. Uh, actually the weather's pretty good here today. No snow, Speaker 1 (01:45): So, oh, that's good. That's good. We're here in January, so I guess if you have no snow in January, it's a good thing. If you'd like to just give us a little bit about your background of, um, what you do and, um, how, kind of, how, what led you into writing this book with Bill? Speaker 2 (02:01): I started as a lawyer over 25 years ago, and I, I did a pretty traditional practice at the beginning, going to court and doing family disputes. Uh, and I, I thought that's what really what I wanted to do was be a litigator. And then I had a couple of experiences early in my career where working with my clients, um, I saw a lot of damage through the court process, uh, particularly with the children that were caught in the middle, uh, literally. And, and then I had, uh, experiences where we went to mediation and it was transformative for me. I realized I want to be a mediator and it was really a powerful positive experience for the clients as well. And so I shifted my whole practice, uh, towards focusing on mediation and collaborative law. It still took me about eight years before I could look myself in the mirror and say, I think I can pay my bills doing mediation and not doing the litigation stuff and completely walk away from it. Speaker 2 (02:57): And then about seven, eight years ago, I, I shifted my focus again into really, uh, supervising a team of mediators for a government agency here in Canada. And, uh, so that's, uh, that's what I do with my day job. And, uh, I've been a speaker trainer with High Conflict Institute since 2011 and got to meet Bill back in about 2009 and just re again, had a very powerful experience. In the first training I had with Bill were some really challenging mediation files that I'd run into where I can say, the client was saying to me, I don't think you're very good at this. Uh, it wasn't working. Uh, I was doing my best. And so I was kinda walking away from something going, maybe I'm just not very good at this. And then I, uh, there was a friend of mine, we both saw a build together at this training and we realized this is what we were running into. Speaker 2 (03:50): And then I just really worked hard to incorporate it. And then I'd been fortunate to be doing training for H c I really, really enjoy it. And, uh, yeah, so that's kind of what brings me to the work. I really, uh, I like conflict, but I like to see it dealt with well. And I find the high conflict personalities and the challenges that come with it, it's so rich and interesting. Uh, but, and I, I really like to help mediators learn how to, again, work through some of the challenges that I had and see that this work can actually be very satisfying. Speaker 1 (04:23): And, and obviously that's what led you to, um, speaking with Bill and really interacting quite a, a lot with, with him and with High Conflict Institute. And we got pretty interested in you because of your background and, and your enthusiasm about, about what you do and, and keen interest in it. So, uh, we're really happy that you're with us at H C I, of course. And, uh, very happy also that, that you co-authored the, the Mediating High Conflict Disputes book with Bill. Speaker 3 (04:51): Let me jump in for a minute here and just welcome Michael to the show and just say from my point of view, how wonderful it is having him on and that we really did start collaborating ever since 2009. And the book we're gonna talk about today is really came out of that collaboration cuz I found Michael more than just about anybody else was exactly on the same wavelength. And so we really developed, uh, this book together and the principles and tried them out and then gave each other feedback about what worked and what didn't work. So Michael, I'm really glad to have you on Again. Speaker 2 (05:30): Thank you so much, bill. No, and it, and it has been amazing to be along for the journey and, and see the evolution of where the book is. The, and so the culmination of all of these ideas and, and as you say, trying them out in different settings, trainings and refining them, getting feedback from people. And, uh, yeah. So it's, uh, it, it's been very, very interesting and to see now the book that really kind of really lays it out. So, well, Speaker 3 (05:56): Let me add another thing for our listeners. We're gonna be talking about mediation of any type. So while we often talk about family law or workplace, the principles we talk about today are really applicable in any, uh, dispute, including high conflict disputes. Speaker 1 (06:15): You know, with high conflict disputes, the, as as you mentioned, Michael, ordinary mediation methods just didn't really do it justice. You couldn't make the progress that you necessarily wanted to. And that's, uh, and you, and as you and Bill have discussed, you kept practicing and experimenting and figuring out what did work. And sort of based in, in bill's high conflict personality theory, you know, you came up with some, some paradigm shifts that were necessary to really be successful in high conflict disputes. So it didn't mean necessarily replacing what you know, as a mediator, a trained mediator, and even the most seasoned mediators, uh, can really run into some difficulties in high conflict mediation. So these paradigm shifts are necessary in order to take what you already know, um, adapt a little bit and really try it and see if you can have some success. So let's talk about these paradigm shifts, bill. The first one is, as a mediator, you need to avoid trying to give the parties insight into themselves. Speaker 3 (07:21): Yeah. So this is one of the hardest things to swallow. Uh, so for me, I'd been doing mediation almost 30 years when Michael and I started discussing all of this. And so over about 12 years, we really shifted our thinking. It's so easy for mediators and all professionals with high conflict. People say, oh, well, can't you see what you're doing? Just stop doing that and do this instead. And it's so tempting and it doesn't work. And not only does it not work, but it actually makes things worse. It makes the person feel like you're criticizing them, you don't like them. Uh, high conflict people are very sensitive to negative feedback. And so even if you say, I have some constructive criticism for you, all they hear is the word criticism. And so trying to give them insight, trying to make them see just doesn't work. Speaker 3 (08:24): And so we don't have to. So instead what we do is really focus people on their choices. Now let's look to what to do, rather than having them say, I shouldn't have done what I did before. So that, that triggers such defensiveness, and it doesn't matter how you say it, when you go back into having them look at themselves, it's just not gonna work. So you find yourself thinking, how can I make him see his part in this? Just forget about that. Or how can I make her see how she's sabotaging herself? Just forget about that. Say, now let's look at our choices. Speaker 1 (09:05): And, uh, I suppose it's very tempting as any human, whether you're in the mediator role or not to, to just, you know, we're, it's so obvious to see the, the weak problem solving skills or the, the, that lack of insight. So it must be very tempting to say, Hey, let me help you out, because as a mediator especially, you're a problem solver. Even though you're guiding and coaching, you're still, you, you see those weak spots. So paradigm shift number one, avoid trying to give the parties insight into themselves. So let's go into number paradigm shift number two, Michael. Uh, why do we avoid emphasizing the past and instead emphasize the future? Speaker 2 (09:42): This one is so important. And what's interesting about it is it's very often doing the opposite of what we feel like doing and, and, and calmly redirecting the parties into the future. Because high conflict people really are preoccupied with the past. This is part of their attack defend cycle. And so they will want to take you there. They may, you know, they may ask you questions or say, I wanna talk about the pastor, or I want an apology before we can move forward. I have to have this. And so we may think, oh, well, okay, I'm supporting the parties by taking them into a conversation that they're saying they need to have. And yet what we're actually doing inadvertently is taking them back into that, um, dysregulated state into that almost painful state. I would say for high conflict people past is pain. And so when they feel criticized about the past, they can actually react very strongly and even blame us. Speaker 2 (10:36): That's quite common, even though they may have asked us to take them there. And that's what can be so kind of disconcerting and frustrating sometimes. And so when we take them into the past, we can contribute to pushing them back into that attack, attack defense cycle into that, uh, into their disregulated state. And, uh, because they're very often not conscious of all of this, uh, they think it's us that did it to them, right? Rather than, uh, they brought themselves there. And so we may need to discuss the past somewhat absolutely, uh, in order to get basic information or build the platform upon which to solve the problem. But it's really about the emphasis, the emphasis needs to be on the future, and what can they do about those things? Future is about change. Future is about problem solving, and that's where we want them. Speaker 2 (11:23): So at the beginning of the mediation, things that we can be doing are saying very clearly, we will be focusing on the future. We will be talking very little about the past and even, um, saying things like, I can't mediate the past. I can only mediate the future. When you start talking about the past, I may redirect you to the future. So upfront, you've set that agreement with them, that understanding, and then it's much easier to weigh in. And I, yeah, unfortunately when I've worked with other mediators, I've seen them in an effort to help go into the, the past, try to help unpack or clear something with the parties, and then at some point they realize they're drowning with them. How do I get out of this? And that's happened to me definitely, for sure. And then that is this, that calmly, you know what folks, I think I'm gonna shift us to the future now, let's move to the future and then ask a future focus question Speaker 1 (12:12): Is, it's, it's kind of interesting. I've, I've seen some, uh, you know, I've had some feedback, uh, in trainings when I've trained to mediators in this, um, these paradigm shifts, I guess. And it's, they really want to, someone want to really explore that past, like, I, I think I have this powerful technique that I can help them explore that past. And it, it's really hard to get this point across to some people. Would you agree? Speaker 2 (12:37): It it is absolutely, because it, sometimes I can understand mediators may think what we're we're doing is maneuvering the parties or somehow even manipulating them to do what we want. And, and really what it is, is appreciating that when we focus on the future, we're helping them stay in a space where they can problem solve. And when we, uh, direct them into the past for our own agenda thinking this is what's gonna help, uh, we are inadvertently taking them into this, uh, dysregulated space, into this space where they're, we're contributing to more upset and more drama. And really, you know, if we think about mediation, it really is about making proposals about the future and what are we going to do now, uh, about maybe some things that have happened in the past. So it is a challenge sometimes for mediators to really make that shift. And yet I would just encourage those folks to think about some of the most challenging situations that you've been in. Where, where did it really go wrong? And I would suggest that this is one of those key areas in an effort to help and ends up, um, going completely sideways on us. Speaker 1 (13:47): Good. All right. So paradigm shift number three, bill. Avoid emotional confrontations or even asking about feelings, which is hard to do, Speaker 3 (13:57): Right? , this is just so counterintuitive. And I was trained first as a therapist before I became a family lawyer, although I did mediation the whole time, um, basically over 40 years from 1979 to 2019. But this is something we learned the hard way is rather than say, oh, how do you feel about that? just, just constantly blowing up. So what we figured out is that high conflict, people don't seem to go through the normal grieving and healing process and instead they get stuck. So if you think about the five stages of the grieving process for any loss, uh, especially a major loss, you have denial, then you have anger, then bargaining. You know, if I do this, I do that. Can I avoid the loss? Then you have depression, sadness, turn inward, feel the pain of the loss, and then you eventually get to acceptance. Speaker 3 (15:01): And for example, they say, you know, about 80% of people going through divorce within two years or moving well through that grieving and healing process. Well, high conflict, people don't seem to do that. They seem to get stuck on guess what? Anger. So if they start to feel vulnerable, that's a very fleeting feeling. It comes through as anger to them. This is what they're feeling. It isn't conscious, it's what they're feeling. And so they carry around a lot of unresolved grief. And when you focus them on how they feel, they feel terrible. You say, so how do you feel? So I feel terrible, you know, you know what she did yesterday or, you know, what he did last week? And this ties to the past because they're feelings are very much wrapped up in the past and they talk about the past cuz they're trying, I think, to, to grieve and heal, but it doesn't work for them. Speaker 3 (16:01): So we have to have a lot of empathy for them. But I want to give an example of why you don't even focus them at all, like asking them how they feel. So, you know, they come in, you meet with them, don't say how you're feeling today and say, you know, how was the traffic? What do you think of the weather? You know, what about that, that ballgame last week. Uh, you can have chit chat, but don't focus on feelings. And here's my example, A high conflict, very high conflict mediation. I has divorce mediation, the husband and wife and the etel lawyer in the room, which usually I don't have. But in this, some of my cases I do. And so we've made a little bit of progress in a couple hours and scheduled our next session, which took, you know, 10 minutes, get our schedules to all work together. Speaker 3 (16:54): And as they're packing up to leave, the husband's lawyer says to the husband, don't you feel better now? Well open up feelings. The husband says, absolutely not. And then the husband goes deeper and he goes, in fact, this was a total waste of time. In fact, I'm never coming back. And he never did. What happened? I tried to keep, keep them focused on thinking and doing and the future for a couple hours. And what happened is the lawyer's question put him back into how he feels and he doesn't feel good. You know, it's always unresolved stuff. And so that just sank the mediation. So that's why we say don't, don't confront them emotionally. Of course, if you get angry with your client, these clients just escalate, but don't even ask about feelings. Very counterintuitive. Speaker 1 (17:53): And I heard you use a new term I hadn't heard before, which is unresolved grief. Uh, we talk about unresolved trauma, but I, I like this unresolved grief either stuck there. Interesting. So, okay, um, number four, Michael, avoid asking probing questions. Um, instead ask them to, uh, teach them to ask you questions. Speaker 2 (18:15): Yeah. And I, I hope folks will start to see that there's definitely a linkage between all of these paradigms. A consistency. So if we wanna avoid some of the things we've already talked about, then we want to avoid giving and to asking probing questions to go too deep into certain areas about either why certain problems exist or what have people done before. Or even getting to sometimes peeling back the onion, if you will, to get to the core of, well, what's really bothering you? What's really important to you about this? And such questions often, again, open up the past or, or try to get deep into kind of what might be motivating someone in this dispute. And as Bill's talked about, if there's unresolved grief, if there's or trauma and, uh, again, or if pushing into those things may just contribute to someone's dysregulation, then we really want to be careful about that. Speaker 2 (19:08): And, uh, and sometimes it's the person's personality that is driving the conflict and their emotions that are driving the conflict. And so there may not be a root of the problem to find in that sense, right? So in some ways, we almost wanna stay on the surface. I hate to say avoiding going too deep, uh, keeps you out of those past painful issues. And in inadvertently opening up those emotions and dysregulation, realizing that in some ways that personalities may be driving the conflict. Uh, so there may not be a core issue to find. And so instead, what we want to do is, and this is very consistent with them, be the ones that are making the decisions. They're the ones thinking about their choices. So instead we want them to be the ones asking the questions of us about their options for going forward, what others have done. In that sense, they're thinking about those things, then that may inform their proposals and, and their choices, right? So again, sort of really in some ways, staying on the surface with them and, and meeting them where they're at. I'm not trying to take them to a place that we think they should go. Speaker 1 (20:14): Hmm, that's really important. And it's, it's really remembering your role as the mediator. You're not a therapist , right? that's, Speaker 2 (20:21): And that's the other risk as we inadvertently step into that space without meaning to, mm-hmm. Yeah. Speaker 1 (20:27): All right. Paradigm shift number five, bill, avoid opening statements and instead ask for questions about the mediation process. Now, I would imagine this is a little bit shocking to some mediators to hear this. Speaker 3 (20:40): Yeah. But you know, what's actually shocking to me is how many mediators agree on this and say, I've already started getting rid of opening statements. And I think we're really seeing the kinds of shifts that are needed beginning to occur, especially with, with meteors where a lot of experience are coming to the same conclusion. So let me explain that. So opening statements used to be one of the big, big foundations of mediation. And it really came in many ways from the court process where both sides get their opening statement and then you start arguing your case. And this is more often with civil mediations, um, than say, divorce mediations. But I've done civil, commercial workplace, et cetera, where there's this, all this energy and the opening statement and the person says how rotten they've been treated by the other person. And the other person, you can see their face getting redder and their hands clenching as they're listening to this cuz they know they're not supposed to interrupt, and yet they can't stand what they're hearing. Speaker 3 (21:54): But on the other hand, the person that's saying all this stuff may really enjoy it, may actually get a, a little buzz, a little high out of, in front of the other person. And the mediator is being able to say, you know, how terrible the other person is. So often the opening statement violates a lot of these things. It allows them time to blame and shame, which we don't want to give. It also takes them into the past where they're stuck. It also gives them an emotional, you know, hit of some sort and it just digs in their heels. And I've seen mediations fail at the ma at the opening statement that, that someone's gonna, okay, I'm outta here. I'm if, if that's what you think, I'm not gonna stay. So we really realize we don't need the opening statement, but people do want a, you know, chance to participate starting early on. Speaker 3 (22:55): So we ask them for questions, tell us your questions about the mediation process and the decisions you're facing today. Any questions about how this process works or how the decisions work? And sometimes the questions are, can we meet a final agreement today? Will it be filed with the court or not? Will you be able to tell us, um, if it's fair as the mediator, will you be able to tell us what the law is as the mediator? And of course, the answer to these two is no, the mediator doesn't decide what's fair and the mediator doesn't tell them what the law is. That's where they get legal advice from their lawyers. And in family mediation, I usually ask, you know, just tell me questions you have about child support, questions about how properties divided questions about parenting plans. And so this gives them a chance to, in a neutral way, essentially put questions out on the table that I can then answer in general terms, uh, as information, not legal advice. And it kind of starts off the process as one of almost a treasure hunt is we're looking for answers rather than making demands. And so that's why, you know, as Michael was saying, teach them to ask you questions. And this is part of how you teach them is at the beginning say, let me know what questions you have about the process and the decisions you're facing today. Speaker 1 (24:34): And I, and in that same vein, along with teaching, uh, we go into paradigm shift number six, which is teach the parties to make the agenda. Michael. Well, Speaker 2 (24:41): And I, I know there'll be a lot of mediators to say, well, I, I always let the parties make the agenda. And yet it li this does link back to what Bill was just talking about. You know, when I was first trained as a mediator, I, I was trained to say something along the lines of, I'll give you each of you five minutes of uninterrupted time to talk about what's brought you to the mediation today. And then I would listen to that information and then I would frame back to them, sounds like what you want to talk about is this and this and this. And so in that way I was framing the agenda I was putting to them. I think you want to talk about these things and in an effort to be helpful and in an effort to listen to what they're saying. Speaker 2 (25:19): But in this case, uh, we really want to, um, allow them to say what's brought them to the mediation? What is, what is, what are the issues they wanna put on the table? And, uh, saying things like, you can propose any topic you wanna talk about, and you can say no to any topic. So that way they're very much in charge of deciding what to talk about and want not to talk about. And, uh, in that sense, we're really encouraging them to start making joint decisions right away about what they're gonna discuss. And, and then as again, as new topics may come up or new issues may come up, it's really helping them to stay. Do you know, either focused on what we're talking about right now or making a conscious intention to change to a different topic rather than getting into a power struggle over my agenda, that kinda thing. Right? So it's, uh, a settlement important difference, particularly if we're not using opening statements in that way to again, offer an opportunity for the parties to have empowerment around what are we going to talk about or not talk about. Speaker 1 (26:25): Yeah. So it ends up being up to them instead of up to you and, and you get to be the guide. Okay, good. Um, and another one on teaching is paradigm shift number seven, bill the, uh, teach the parties to decide who goes first and other process decisions. Speaker 3 (26:44): This was another shift from how I was trained and I think Michael and I were both trained in a similar way with, with standard approaches that we're now just doing almost the opposite . And I think this is a brain thing, and I wanna squeeze the brain in here for a minute, is what we're trying to do in many ways is move the parties away from their reactive thinking to their problem solving thinking. And so if we keep them busy problem solving rather than passively there, while the mediator brilliantly guides things instead, have the parties do a lot more of that thinking and they get credit for how it goes, but it also keeps them making little agreements. So for example, at the beginning when when I say, you know, so does either of you have, uh, questions about the mediation process or the decisions you're facing today? Speaker 3 (27:44): Rather than saying, why don't you go first, Sarah, or you go first, Sam say, say, who wants to go first? Who should, who should we hear from first? And often people will say, oh, she can go first or he can go first, or, I really wanna say something right, right away. And so you're meeting them where they are, you're having them decide, and these are little joint decisions. And so when it comes, for example, to making proposals is rather than saying, well, why don't you go first? Is saying, who wants to go first? Or who should we have go first? That that's another joint decision. And what's interesting, just to comment on the agenda is I've had people spend 15, 20 minutes sometimes arguing about the agenda and which items first and which items second and which items third. And people's say, well Bill, shouldn't you just, you know, for the sake of time, tell them how to do it? And I say, no, this may be the most important step in the, in the mediation process because this is their first joint decision. And once they start making little joint decision and making the agenda is not that complicated, but doing it by agreement, that's what's complicated. If they can do that, you're already building momentum for all the other bigger decisions. So that's why these little decisions are really worth doing. And they do add up. Speaker 1 (29:19): Yeah, it's almost like that's the practice session. Yeah. Uh, they're at the beginning. So paradigm shift number eight, Michael skip exploring interests. Speaker 3 (29:30): So, Speaker 2 (29:30): Uh, again, we're not saying don't talk about 'em, just don't talk about 'em right at the beginning. And Bill, I know in the next paradigm's gonna talk about where do we do that. So in some ways this is, this is a big one, but at the same time we are saying interests, interest-based negotiation, interest space mediation is a very important foundation for all of the work that we do. I, you know, the, the, all of the mediation training that I took at the beginning of my career was around interest based mediation. And I, I think of interest really is part of the language of conflict resolution, the language of mediation to help parties solve things that seem intractable or whether just mutually their, their outcomes just don't match at all. And so we do want to help them, uh, understand and use interest to solve it. Speaker 2 (30:16): But it's very often in an interest-based approach, we would start with that. We put the positions aside, we put the outcomes aside, and if we're a whole stage, we explore interests, we ask open questions to dig underneath what people are saying. They want those outcomes to find out underneath what's really important to them. The, the challenge with, um, high conflict people or people stuck in high conflict thinking is they have a really hard time identifying their own interests. And in some ways if we talk about the other party's interests, so this is what's really important to them, they may come back and go, oh, well if I can find a way to mess with that, I will. Rather than, oh, okay, see that's important. We need to find a way to satisfy for that for them too, right? And we may even by saying something like that, they, and they're black and white thinking, they may see that we have now flipped sides and are on the other person's side, uh, that kind of thing. Speaker 2 (31:08): So it, it requires a lot of insight, I think for a lot of people, average people stuck in conflict to get underneath their positions and start to think about their own interests and let go of those positions. So in some ways we're really working with where are they at now? What are they coming in with, re casting those positions as proposals. This is an outcome that I would like to see if I can achieve. I'm proposing this. And starting with that early, working with where they're at with the outcome. There's thinking about they think in concrete terms and a lot of us, when we're stuck in conflict thinking concrete terms, so we're just simply meeting them where they're at, starting with that exploration instead of trying to force them to put it aside and say, we're gonna talk about interest instead. So that, that's a really important one and can help us work in a much more concrete way with, uh, the parties. Speaker 1 (32:02): Yeah, and I'm, I imagine this is a, a big one for most mediators to get their, their head wrapped around because I think all, probably all mediators are trained in interspace mediation. I, I dunno that for sure, but I would think so. Okay, so back to teaching. Um, and this is something you mentioned, Michael, is, is teaching the parties to make proposals. So Bill, paradigm shift number nine. Speaker 3 (32:25): So let me actually pick up by adding to a little bit, uh, what Michael was saying about interest is, for the last 40 years, interest-based negotiations have dominated, uh, bargaining, labor management, family, civil disputes, school disputes, uh, all kinds of disputes. And it's just, it, I think it's shocking to some people when we say we're gonna skip that and go right to proposals. So instead, and remember this is thinking cuz they, they don't, they, they can't see, like Michael said, the other person's interests, what they see is something wrong. And so when the other person says, well this is why I'm looking for that, I say, well that's just wrong. You shouldn't want that. So this steers clear of that. So we really jump over interests. Now in interest-based negotiation, positions are bad and interests are good cuz positions don't, you know, give much flexibility. Speaker 3 (33:32): But with high conflict people, they come in with positions. So what we do is we reframe those. So I'll give you an example. Had a divorce mediation, a couple came in, sat my round table. Immediately after sitting down, the wife starts pounding the table and she says, I'm getting the effing house, I'm getting the effing house only. She spelled it out of course. And I said, oh, that's a proposal, . And, and she says, that's not a proposal, it's what has to happen. And I said, well, in mediation we have to discuss things before they happen. So we discuss proposals. And so that would be a proposal and we'll discuss that. And who knows, coming out the discussion sometimes is something even better than the initial proposal because proposals are the building blocks of agreements, but not necessarily the agreement themselves. So I said, hang on, we're gonna get to that pretty soon. Speaker 3 (34:33): So they got their agenda and now who wants to go first making a proposal and the house was the first issue and she's, you know, I'm getting the effing house. So that's the proposal. Now the way we teach proposals is three steps and these steps are so important. This may be the turning point in a high conflict mediation. First person makes a proposal, kind of a who, what, where and when. So I'm getting the house, that's me, that's what I'm getting, and I'm getting the house, I want the house. And in high conflict cases, usually the other person reacts to the proposal. That's the stupidest proposal. Or I'll never in my lifetime agree to that proposal or why didn't you make that proposal a year ago? I would've agreed then, but not now. And we say, hang on, don't respond. Just ask at least two questions and have them be logistical who, what, where and when. Speaker 3 (35:33): Questions they may ask, well, have you checked into, can you afford the mortgage? When would you take over the house? How would you pay me for my interest in the house? You know? So all of these are logistical questions and when we do role play in our practice and we do 12 hour training in this method, people say they can feel a shift in their brain sometimes from reacting cuz they're, they're getting ready to say that's stupid. And having to think of a question really shifts your, your perspective. And so they shift to saying, well yeah, when would you pay me? How would you pay me? Those kinds of things, even if they don't agree, just ask questions right now. Then the last step is to just simply respond. Yes, no, or I'll think about it and I'll think about it. It's a really good answer for high conflict people cuz it means they're not reacting, they're thinking about it. But as a mediator you need to say, how much time do you need? Five minutes, five days. So that, that you keep track of that. But by making proposals it keeps them busy thinking instead of reacting and they get credit for resolving the dispute and they're more likely to follow their agreements if the agreements are based on their own proposals. Speaker 1 (37:03): And you've written a book, uh, specifically about proposals called, so What's Your Proposal, ? We'll have the link for that in the show notes by the way. Um, alright, so moving along to paradigm shift number 10, Michael resist hammering out agreements. Why do we do that? Speaker 2 (37:19): And this probably of, of all of them makes the most sense. I think when we talk about all of this is that the more that we inadvertently, uh, pressure someone to accept an agreement because either I'm looking at my watch or it's five o'clock I need to get going or, um, you know, we're running out of time with this session, if we can wrap it up today, or even there might be a trial coming up and, and it's important that we get it done, that inadvertently, you know, our tone, our face, our body posture will change and, and that can inadvertently contribute to getting back what we don't watch as the person becoming more rigid and more positional. They, they very often these folks do have a hard time accepting agreements cuz they're letting go of the conflict. And they may even realize, hey, that thing I came in with at the beginning, I've, I've compromised on that. Speaker 2 (38:06): And they remind themselves of that and they're like, I'm not agreeing, I'm not doing that. Even though maybe at one point they said they would. And it's what we just need to accept is that is part of the process. That is what they're gonna go through. So they're rather get frustrated with them or twist arms or hammer out an agreement is really to be patient with them. And the more that we are patient with them and are not unduly pressuring them in any way, then they will very often return to that thinking space. And they, they will very often make the agreement that they had talked about agreeing to. They may not, but that is up to them, right? So we need to accept that once we've breached the kind of tentative agreement, it may still take, uh, another chunk of time to get to an actual final agreement where people sign, right? Speaker 2 (38:53): And, and again, that's just part of the process. Um, I remember a, a file I had where as a mediator getting close to the end of the day and the two parties had with their lawyers, had agreed to some fairly straightforward terms in a sort of simple agreement. And I was being asked to kind of write it up almost on a piece of paper, but we were starting to run out of time and I probably did change in my tone and my face to convey, uh, you know, it's important that we end on time here. We we need to get this done as, as did this client's lawyer. And so of course he returned by saying, I'm not signing, I'm not signing this. In fact everything I've agreed to, I want the opposite. I want all of it now. And I could see later when I reflected on it, he's a big ball of anxiety. Speaker 2 (39:34): But instead of looking within and saying, I feel so anxious because we're getting close to the end and I've given a few things up, he, he goes in his mind, there must be something wrong with the agreement or there's something wrong with these people. They're trying to maneuver me to something that's a bad deal cuz I'm not feeling good. So he started pointing out things like, you misspelled my middle name in this agreement that is incompetence. And, and to him evidence of there's something else in here. Where's the trick in this agreement? And so then I had to really, uh, adjust my approach and I really, uh, realized I need to focus on connecting with him, being calm myself, saying, this is totally up to you. You, you know, if we need more time, you want to take a break, we can reconvene. That's okay. Speaker 2 (40:15): And I even talked about myself, you need a mediator who really understands how important your concerns are, how difficult this has been. And I'll, I'll can, I'll work with you on this, let's you know, that kind of thing. And I offered him some information on a couple of things, but without, you know, or else that tone of, you know, if you don't do this and you go to court, it's gonna cost you a lot of money. That kind of stuff. And really emphasizing it's up to you as he resisted, I said, this is up to you. And then he did sign, he ended up signing very quickly. He said, okay, I'll, you know what, I'm gonna sign the agreement. And it's not that I'm a magician, I I make mistakes all the time. Don't, don't get me wrong. Um, I just focused on being calm and calming him and getting him back to his thinking space. And then you return to where he had been and then he was thinking about his choices and he says, okay, I'm gonna do it. So again, that's just really the more that we try to hammer out agreement, we inadvertently pressure them, we push them into that reactive state and then we get more back of what they don't want, we don't want, right? Speaker 1 (41:11): Yep. So resist hammering out those agreements and, and avoid focusing on the outcomes. Right, right. I i I see that. Yeah. Um, a lot. Okay, just two paradigm shifts to go bill, avoid the apology quicksand. Speaker 3 (41:25): So these are two bonus, uh, cuz we told you at the beginning we had 10 paradigm shifts and they keep multiplying. So this one is just totally fascinating and I wondered if it would be hard to really convince mediators on this. Cuz mediators are really generally nice people and mediators want to see people get along and apologies with about 80% of people often resolve disputes and they can be the key to unlocking things. But with high conflict people, there's two problems actually. One is, let's say you're starting your mediation and what they say is, I can't negotiate until I get an apology from the other side. Let's say the high conflict person says that maybe they pound the table, I can't go further unless we have, I have an apology. But usually what they're looking for is a reasonable person up to apologize for setting limits on them like a supervisor or a co-parent or a manager. Speaker 3 (42:36): And so you're not going to get an apology for reasonable setting limits. So that's not gonna go anywhere. On the other hand, sometimes reasonable people want the high conflict person to apologize. You should apologize for what you said on the internet or what you did in, you know, last week or last year. And high conflict people don't apologize because they think they're in the right, they're very defensive and they see things in all or nothing terms. So you're not gonna get an apology either way. So what we found is to just say, as soon as someone says, and I want an apology, if the other person doesn't immediately apologize, what I say is, oh, hey folks, you know, I don't do apologies and my mediations apologies are about the past and I really focus on the future. So if there's something you didn't like in the past, think of how to make it a proposal about the future because we can control the future and we can't control the past, so let's just move forward and, and not worry about that. And generally they accept that because I'm just pulling the rug out of that line in the sand and that just doesn't work. Speaker 1 (43:55): Yeah, that's a tough one. , uh, well stated. All right, now the last one, Michael, is paradigm shift number 12, another bonus, um, avoid focusing on the negative. Speaker 2 (44:07): It's like an app of the bonus tracks. You stay till the end, you get a couple extra things, Speaker 1 (44:10): Right, , right. Speaker 3 (44:11): Um, Speaker 2 (44:12): Yeah, avoid focusing on the negative because you know, uh, again, in this process when we're talking with folks, we're always shifting thinking and, and so we want to be shifting to problem solving into the future and to looking for positive outcomes. And so if we, uh, inadvertently allow the parties to focus on the negative by perhaps if they are starting with a proposal, I've, I've seen lawyers do this where they'll say, before they make the proposal, we really don't think you deserve anything. And if we go to trial, we're gonna win. Uh, you're gonna get zero, da da da da. But in the interest of settlement, we're offering X. And I very often say, the Lord just say, we're offering X, right? And leave the first part out because you've lost that person back at the beginning when we said, we don't think you deserve anything or we're gonna win, they're like, oh yeah, really? Speaker 2 (45:01): And they're not hearing the proposal. And so again, if they're sniping at each other, those kinds of things that that can be destructive. And so we wanna say things like, folks, uh, I'd like us to agree on no name calling. That kind of thing. And, and these are things that we can, uh, work with the parties in preparation is really around, uh, what's the language that I want to use that's moderate and future focused and focused on proposals. Again, it it's, it's something that we might have to tolerate some of it to some degree. We don't wanna be, uh, policing people in every word they say, but overall is really keeping in mind the language that we're using with folks and they're using with each other. We really want it to be sh focusing, shifting to the future. We're always shifting thinking and, uh, negative language can yeah. Can take people down. Yeah, Speaker 3 (45:50): I really agree. I think that especially high conflict people are so sensitive to negativity that you're like suggesting to them the negative then they, they go there and they can't come back. So all of this is to really fit with what high conflict people the way they think. And I, I think it's a good place to emphasize what we're talking about is not every, everybody, 80% of people don't need this caution and a lot of these paradigm shifts they don't need. But with high conflict people, this helps them succeed and they appreciate that. And, and it makes our work much better too. We get to feel, hey, we reach an agreement instead of angry that our clients just think differently. Good. Speaker 1 (46:40): Well, thank you both, uh, Michael and, and Bill for this very, uh, fascinating episode on paradigm shifts. Uh, whether you're a mediator or someone who has been in mediation or will be in mediation, a lot of, lot of valuable information here. Things to think about and all of us hope that this information has has been very helpful to you. Wherever you're listening, Speaker 1 (47:07): I wanna thank Michael of, of course for being here with us today. And, uh, if you want to know more about Michael, you can look in the, uh, show notes and, uh, for the links to his website and to more information about him, we'll also put, put the links to the book. They've co-authored New Ways for Mediation and Mediating High Conflict Disputes and, uh, the, so what's your proposal book and lots of other things, uh, uh, actually, uh, links to the course in New Ways for mediation training as well. So thank you for listening. Next week we'll talk about presenting your case without using labels in court or at work or anywhere really. And, uh, send your questions to podcast high conflict institute.com or submit them to high conflict institute.com/podcast. And we'd love if you'd give us a review wherever you listen to our podcast. Until next time, keep learning and practicing these skills. Be kind to yourself, be kind to others while we all try to find the missing piece. It's all your fault. It's a production of True Story FM Engineering by Andy Nelson. Music, by Wolf Samuels, John Coggins, and zip Moran. Find the show, show notes and transcripts@truestory.fm for high conflict institute.com/podcast. If your podcast app Laos ratings and reviews, please consider doing that for our show.