Managing High-Conflict Dissolutions in Mediation and Court

August/September 2022 By Liz Merrill and Michelle Sylvain

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

It may also be appropriate to suggest that a client collaborate with appropriate mental health, accounting, and forensic professionals. Practitioners should consider compiling a referral list for this purpose. And clients can be encouraged to pursue self-care activities and put together a stable support system. In this regard, divorce coaches (discussed below) can help clients build coping skills and strategies, separate emotions from decision-making, stay organized, and enhance collaboration with other divorce professionals.

Phase 2: Become Educated

Most people don’t enter a divorce with much knowledge of what that process entails, including legal requirements, how long the process takes, and what lies beyond. An educated and well-prepared client can benefit all participants, including divorce professionals. Practitioners should thus encourage clients to

• educate themselves about the divorce process by reading relevant literature and attending divorce support workshops, local legal aid workshops, courtroom visits, and other relevant activities;
• educate themselves about high-conflict personalities and situations;
• learn strategies for maintaining composure in and out of court;
• avoid emotional responses and focus on credible information;
• respond to false allegations calmly with facts and avoid defensive postures; and
• understand that initiators often fail to follow the rules, laws, or protocols.

In 2013, the American Bar Association added divorce coaching to its list of ADR methods. The ABA defines divorce coaching as “a flexible, goal-oriented process designed to support, motivate, and guide people going through divorce.”13 Divorce coaches are increasingly accepted as valuable resources for clients and other divorce professionals. They can walk clients through the nonlegal practicalities of divorce, allowing attorneys to focus more efficiently on the legal process, and they can help all parties learn and employ evidence-based strategies, understand how to reduce risk, manage inflammatory behavior, and influence healthy client decisions. Divorce coaches can also focus participants on

• letting go of the mental trap of being right. Learning to have peace with one’s emotions far outweighs winning or losing in a conversation with another person.
• letting go of other people’s opinions and judgments about themselves. It’s impossible to control the thoughts and opinions of others.
• disentangling from the other person. Healthy relationships are built on interdependence, which allows people to stand on their own and, at the same time, stand more effectively with others.

Phase 3: Document Behavior Patterns, Explosive Texts, and Threatening Emails

Divorcing clients, especially those in high-conflict situations, should be encouraged to document everything from financial matters to behavior patterns, and preferably before even filing. There’s a wealth of research indicating that leaving an abuser is one of the most dangerous times for domestic violence victims.14 Studies also show that many domestic violence cases arise out of high-conflict dissolution cases, and these cases often end with more serious consequences than the waste of money or resources.15 Therefore, clients in such situations should be organized in advance. Before a client files for divorce or announces that they’re leaving the relationship, practitioners should encourage them to scan or otherwise document as much of the family’s finances as possible, including

• passports, green cards, driver’s licenses, work permits, immigration papers, and other identification
• leases, house deeds, and property insurance policies
• car titles, registrations, and insurance information
• marriage certificates
• birth certificates
• Social Security cards
• proof of address
• credit cards and checkbooks
• utility bills
• proof of income for both parties
• bank and credit card statements
• tax returns
• medical records
• police records.

Clients should also document fact-based evidence related to the initiator’s behavior, including information about each of the initiator’s allegations that are false, exaggerated, or misrepresentative; patterns of abuse; and any documented evidence that shows the target client’s truthful behavior and consistent honesty.16 Such evidence should be kept organized (for example, in a daily calendar-style journal, a binder, or cloud storage) so it can be used to support prior statements, depositions or declarations, and other important documents.

Disengagement and De-escalation

Some techniques and strategies that mediators and attorneys routinely employ in dispute resolution don’t always work well with those with high-conflict tendencies. But mediators who have strategies to keep parties forward-focused and solution-oriented can effectively manage conflictual behavior.

Mediators must first distinguish between high-conflict families—involving two or more equally difficult personalities—and families where there is domestic violence—a violent perpetrator and the rest of the family. The former may have high-conflict initiators with or without violent behaviors; a high-conflict family can involve two difficult personalities but is just as likely to involve one initiator and one target. The distinction between high-conflict and domestic violence situations is necessary for mediators to accurately assess the participants’ specific needs. But regardless of the nature of the situation, the goal is for participants to disengage from and de-escalate the highly charged emotional atmosphere.

Disengagement Techniques

When an initiator engages a target, mediators often respond by reframing and directing the process. However, this may not be enough to de-escalate conflict caused by a practiced initiator. Bill Eddy, in his groundbreaking work BIFF: Quick Responses to High-Conflict People, Their Personal Attacks, Hostile Email and Social Media Meltdowns,17 outlines one of the simplest, easiest to remember disengagement techniques when dealing with high-conflict people: the BIFF Method. It works not just for feuding clients but between and among divorce professionals and mediation participants. The BIFF method can help bring any angry exchange to an efficient conclusion and be used by anyone, in any circumstance.

People generally have a tough time responding to personal attacks in written or verbal form because it puts them in a reactive, elevated state rather than in a response mode. Therefore, pausing reactivity allows people to momentarily disengage and avoid lashing out while formulating a response that will have a better chance of diffusing conflict and communicate real needs. BIFF stands for:

• Brief. Keep responses short, typically a paragraph, even when the comment one is responding to goes on for many paragraphs or pages. This is often sufficient to get the main point across and leaves less for the other person to react to.
• Informative. Give straight information rather than emotions, opinions, defenses, or arguments. A participant doesn’t need to be defensive when another person is being hostile. The focus should be on providing relevant information while managing emotions and responses.
• Friendly. This can be challenging for someone who is being attacked in writing or verbally. However, keeping a cordial tone avoids feeding hostilities and may calm an upset person. Just using a friendly greeting and closing can be enough to keep hostilities from escalating and show that the client has self-restraint, which is as critical in mediation as in a courtroom.
• Firm. Use the BIFF response to firmly end a hostile conversation cordially or to narrow the communication to focus on a two-choice solution. This can help avoid opening the door to more hostile comments back.

Eddy also suggests using EAR (empathy, attention, and respect) statements.18 This doesn’t mean agreeing with someone but rather giving them what they crave yet don’t always receive. It can be a simple acknowledgment of someone’s feelings; for example, “I can see you are frustrated by this situation, and I want to help. Let’s talk about it so that I can understand what’s going on. I have a lot of respect for the efforts you have made to deal with this problem.”19

Becoming adept at using BIFF and EAR tools can help mediators intervene, calm everyone down, and successfully model for the parties how to engage in logical problem-solving.

De-escalation Tools

In Never Split the Difference,20 author and former FBI hostage negotiator Chris Voss outlines effective de-escalation techniques and recommends the tactics of mirroring, labeling, and becoming practiced in effectively saying “No.” The advantage of these techniques is that they create distance between people and the conflict, which is critical to a person’s ability to disengage and remove themself from conflict cycles.

Mirroring. Mirroring is simple: repeat the last three words (or the critical one to three words) of what someone has just said. Humans fundamentally fear what is different and find comfort in similarity, and that extends to language. Using mirroring encourages the other party to empathize and bond, keeps people talking, buys your party some time, and can also reveal strategies or inconsistencies in what someone has said.

Labeling. Labeling is another way of validating someone’s emotion by acknowledging it. The first step to labeling is detecting the other party’s emotional state. The key here is to pay close attention to changes people undergo when responding to external events, and in a negotiation scenario, these external events are often words. Once an emotion has been spotted, the next step is to highlight it by labeling it aloud. Labels can be phrased as statements or questions and almost always begin with phrases like:

• “It seems like”
• “It looks like”
• “It sounds like”

Labeling negative emotions can diffuse them, and labeling positive emotions or feelings can reinforce them. Thus, labeling helps de-escalate situations because it acknowledges a party’s feelings without trying to change them. The desire to feel appreciated, heard, and understood is especially critical for high-conflict personalities because it can help reinforce positive perceptions and dynamics.

Effectively saying “No.” Saying “No” is highly effective in mediation because it allows participants to clarify what they want by eliminating what they don’t want.

“No” can mean different things, such as:

• I am not yet ready to agree.
• You make me feel uncomfortable.
• I don’t understand.
• I can’t afford it.
• I need more information.
• I’d prefer talking to someone else.

Because “No” can mean so many things, it’s helpful for parties to articulate why they cannot agree or say yes. But there is a danger to asking “why” in a mediation because it can put a participant in a defensive posture. However, with nuanced coaxing a participant may be more likely to feel heard and remain flexible about outcomes. And when a party reveals useful information, this can enhance negotiations. Open-ended questions that start with “tell me,” “explain,” and “describe” are all effective in drawing people out without putting them on the defensive in the way that “why” questions can.

Clients in high-conflict dissolutions need a wide range of support, and these supportive techniques are simple and easy to practice.

Other Effective Mediation Tools

In her book The Conflict Pivot, Tammi Lenski notes, “The way we disagree affects the resilience of our vital relationships, how influential we are, the quality of our decisions, and the effort needed to reach accord.”21 Here are a few additional techniques that can help people more effectively work through their disagreements in high-conflict situations.

The Four Fuhgeddaboudits

In Mediating High Conflict Disputes,22 authors Eddy and Lomax encourage mediators to generously use the “Four Fuhgeddaboudits”:

• Fuhgeddaboud trying to give high-conflict parties insights into their own behavior. They will not be able to see their part of the problem and will become highly defensive, so it won’t work.
• Fuhgeddaboud emphasizing the past. Focus on the future instead. Initiators tend to be stuck in the past and want to defend their behavior rather than look toward solutions.
• Fuhgeddaboud emotional confrontations or opening emotions. While this can be healing in some mediations to address emotional issues, it does not work in high-conflict mediations. High-conflict people chronically feel victimized and are unable to change their behavior or accept their role in conflict, so it is best to avoid even asking initiators about their feelings. Instead, focus them on tasks and proposals.
• Fuhgeddaboud telling initiators they have a high-conflict personality. It will not help anyone.23

Key Participant Tasks

Eddy and Lomax suggest that by giving parties a few key responsibilities, mediators can help participants be less reactive, less preoccupied with blaming, and more committed to finding their own solutions rather than looking to the mediator for solutions. Mediators should require parties to

• ask questions. By emphasizing the participants’ role in asking questions, the mediator can convey that mediation is a joint problem-solving project and the participants must find solutions. Asking questions can help parties develop a sense of teamwork and shift their focus toward information gathering and away from making demands.
• create their own agenda. This focuses parties on problem-solving rather than just reacting emotionally. If parties veer from their agenda, the mediator can stay neutral and bring them back to the agenda they created, keeping them in a collaborative, problem-solving mind-set.
• create their own proposals. This makes parties think instead of reacting. This task has three steps:
  1. one person makes a proposal (who will do what, when, and where);
  2. the other person asks questions about the proposal; and
  3. the respondent says “yes,” “no,” or “I’ll think about it.”
• make their own decisions. Mediators help parties raise all possible details that could be involved in implementing decisions, including what to do if agreement isn’t reached. This helps parties think about how likely they are to follow through with their decisions.24

Familiar Tactics

Eddy and Lomax also recommend that mediators in high-conflict disputes double down on familiar negotiation tactics such as tactical empathy, asking open-ended questions, and mirroring. Connecting through such techniques allows participants to feel heard and helps them relax. Parties who can dissipate anxiety have more access to the higher functioning part of their brains and can escape the “hijacked amygdala” effect that drastically limits the ability to think rationally. Further, using EAR statements can help mediators maintain structure and prevent participants from feeling attacked.25

Mediators should also be prepared to repeatedly remind parties who are stuck on rehashing the past that mediators cannot mediate what has already occurred. One way to do this is to remind parties they don’t need to resolve the past; they only need to find a way forward. If parties fall into a conflict cycle, mediators can redirect them by saying, for example, “you might be right, or [the other person] might be right. I’ll never know. But I do know that you can only move forward by making decisions about the present and future, regardless of the past.”26 When a mediator focuses parties on the task at hand and firmly redirects them to the next task, parties are less inclined to engage in anger and blaming.

Finally, by giving parties hope, pointing out progress, and helping them see potential in their work toward the proposed solutions, mediators can keep the parties at the table in problem-solving mode. The foregoing tools can be taught to the parties during or before mediation sessions. The sidebar describes additional resources for managing high-conflict situations.

Conclusion

Though most marriages that end in divorce are low conflict, high-conflict dissolutions consume a disproportionate number of resources, in and out of court. Practitioners can help minimize conflict and promote efficiency in court and court annexed processes by becoming familiar with the interventions discussed above. This important work will save time and money and promote increased safety and better case outcomes.

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