Managing High-conflict Dissolution in Mediation and Com
| Publication year | 2022 |
| Pages | 18 |
August, 2022
ALTERNATIVE DISPUTE RESOLUTION
BY LIZ MERRILL AND MICHELLE SYLVAIJ
Most civil court-ordered mediations in Colorado are dissolution cases, a significant percentage of which are high conflict. This article describes the nuances of high-conflict dissolutions and offers practitioners tips for managing these cases in mediation and court proceedings.
In Colorado, contested dissolution cases are often referred to mediation pursuant to local case management orders.[1] Accordingly, attorneys and other alternative dispute resolution (ADR) professionals mediate more of these cases than any other civil case type. While most of these cases are low conflict, research suggests that as many as 30% of all divorces in the United States are now considered "high conflict," and that number is rising.[2] High-conflict dissolutions consume a disproportionate number of resources, both in and out of court. This article discusses how family law mediators and other family law dispute resolution professionals can help families navigate high- conflict dissolutions with minimal time and expense.
Identifying High-Conflict Dissolutions
There's a common misconception that a high-conflict dissolution involves two parents who are both stubborn, selfish, or "crazy." But the reality is more nuanced. Either or both parties may be tripped up by fear or anger-based emotions, bad advice from friends or lawyers, personality disorders, or a combination of all these factors. High-conflict dissolution is best described as a dissolution by people who repeatedly engage in a pattern of behavior that tends to increase conflict rather than reduce or resolve it.[3] Their conflictual pattern happens repeatedly, in many different situations, and with many different people. It is also identifiable, once you know what to look for.
High-conflict dissolutions always involve, at a minimum, one person who can be thought of as the "initiator" of the high conflict (e.g., a husband, wife, or in some cases, one or two lawyers). There is also often a "target," someone who may be trying to cope with years of psychological abuse, navigate the divorce, defend themselves, and get through the process unscathed. The target may present as histrionic, unable to focus on forward-looking solutions, or unable to make decisions that may seem easy and obvious to others. Initiators are experts at subtly triggering the target into extreme behavior, in or out of court, often with the intent to flip the script and prejudice the proceedings in their favor.[4]
Initiators often convincingly present themselves as the victim. As a result, it's not always immediately evident whether a party is an initiator or a target. Further, initiators may trigger a target into an extreme emotional response where the target either shuts down entirely or becomes out of control. This dynamic can quickly bias the court or alternative conflict resolution neutral against the actual victim. Generally, initiators tend to be
■ self-focused to an extreme
■ determined to win at all costs
■ difficult, dishonest, and engaged in playing games
■ blinded by control/winning
■ interested in using children as collateral damage.[5]
High-conflict personalities use predictable tactics inside and outside of court. They seek out professionals who support them, escalate their issues, believe their "emotional facts," and facilitate their increasing conflict and frivolous motions.[6] Initiators are driven by a need for control and power, so compromising can mean abandonment to them. In domestic relations cases, initiators typically
■ cause delays and waste time
■ provide untrue or incomplete information
■ file motions or documents with little merit
■ are unresponsive to questions
■ are deceitful or make false accusations
■ engage in harassment, stalking, spying, or other threatening behaviors.[7]
Initiators may fantasize about success in court. They often present as clients who "just want their day in court" and are driven by dramatic court movie scenes. They have no qualms about using the court and court-annexed processes to achieve their goals and often receive sympathy when they file "sad story" documents. They may delay mediation by making allegations that require investigations by authorities and the involvement of other professionals. During mediation, initiators may make outrageous and untrue allegations. And regardless of the result, after a mediation or final dissolution order, they typically return to court repeatedly, ignore judges' orders, and generally continue to test the system's limits.[8] Initiators can cause costs to spiral out of control, and initiators can otherwise create misery for other participants.
Unfortunately, courts often aren't equipped to adequately address high-conflict dissolutions, and many divorce professionals lack the training to address the needs of targets (and most disturbingly children), who can end up on the short end of a needlessly protracted and prohibitively expensive legal battle.
Fortunately, focused intervention and education can often improve results. While a basic understanding of high-conflict situations and the behavior patterns of initiators and targets won't magically affect mediation or divorce outcomes, attorneys and ADR professionals who understand these concepts can better manage conflict, calm frayed nerves, and increase the likelihood of successful negotiations. A better managed process can save time and money and decrease the chances of potentially dangerous outcomes.
Further, the effective management of high-conflict situations may shift the initiator/ target pattern by prompting behavioral changes.
For example, when initiators don't achieve the outcomes they expected, they may be less inclined to pay legal or mediation fees for protracted litigation, and to file grievances or malpractice suits. The techniques discussed below can help professionals manage high conflict in court proceedings and mediations.
The Assertive Approach
Clients who are targets may be accustomed to "walking on eggshells" and thus may be either conflict-avoidant or overly emotional and aggressive. These behaviors are routinely used by people who have spent a long time dealing with high conflict, but they don't work well in a divorce setting. Therefore, divorce clients should be encouraged to maintain an "assertive approach"[9] —one based on facts, not opinions or interpretations—and to think strategically, not reactively. An assertive approach increases the client's credibility and encourages better divorce outcomes.
An assertive approach requires patience and flexibility. It uses clear messages, deadlines, and boundaries, and it avoids admonishments, advice, and apologies. Clients can use an assertive approach to walk the line between conflict avoidance and being overly emotional and aggressive by using the three phases explained below.[10]
Phase 1: Prepare Emotionally
Clients must first understand the emotional challenges inherent in divorcing a person with a high-conflict personality. Helping a client who is a target typically involves listening to some amount of crying and complaining, though clients must understand that courts likely won't react well to such emotional displays. In addition, clients should understand that it's expensive for them to use professional time for crying, and rather than crying about and blaming initiators, they will be better served by simply documenting behavior patterns without judgment.[11] Practitioners can help clients appreciate the importance of disengaging from emotional situations by teaching them how to craft nonreactive emails and responses, and offering communication tools such as the BIFF method discussed below.[12]
RESOURCES FOR MANAGING HIGH CONFLICT
Digital Security
■ Galperin, Ted Talk: What you need to know about stalkerware, https:// www.youtube.com/watch?v=xzWFrHHTrs8&t=148s
■ https://www.joyfulheartfoundation.org/blog/digital-abuse-signs-and-help
■ https://staysafeonline.org
Domestic Violence Support/Information
■ http://www.thecrisiscenter.org
■...
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