It’s 10 years since I completed my mediation foundation training and nine years since I made the brave/rash decision to give up my job as a solicitor and mediator to set up a mediation practice and be solely a mediator (note never just a mediator). During that time I have reflected a lot on conflict between humans. It’s fair to say that I am fascinated by it. Mediation training encourages you to confront your own feelings about conflict, and it has never been lost on me that I am largely calm and untriggered by conflict in the mediation room, but sometimes overwhelmed by it when it happens outside of the mediation room.
Curiosity is a mediator’s friend, and I have been a keen observer of conflict for the last 10 years (and perhaps before this). In addition to this I am a Highly Sensitive Person. I capitalise this concept specifically because it is a recognised trait as set out in Elaine N Aron’s brilliant book The highly sensitive person: How to thrive when the world overwhelms you. Elaine (an American clinical research psychologist and author) wrote this book after conducting a five-year research project. HSPs notice far more nuances around them because they are so tuned in to other people (and often overwhelmed by them – especially in large groups). I have learned that this means I notice things that others do not and pick up on things that are not being said. There are many other traits of HSPs but the point of mentioning it here is to explain that not only have I been a student of conflict but an intuitive and attentive one.
I have seen many courses over the years aimed at skilling us up to deal with high-conflict work and, to give full disclosure, I wrote and delivered a new course in May about understanding and managing high conflict for lawyers and mediators. Following and learning about high conflict has led me to the conclusion that it is an umbrella term that means a lot of different things – a number of which require vastly different skills. I think it would be helpful if we started to unpick this term a little bit to talk about what we really mean. So in this article I’ve given some examples of situations that are perceived as high conflict, but tried to highlight the differing needs those clients have of the family practitioners supporting them.
There is often the idea that cases that are hard to sort out are high conflict. The problem with this is that it puts in the same group two people with unreasonable expectations arguing it out, and a controlling abuser who is simply gaslighting their ex-partner and watching their reaction. I also wonder if for many overworked, overstressed and overwhelmed practitioners there is an element of high conflict in any case that you find difficult to deal with. There is no judgement on this idea. I fully recognise that when I was working as a lawyer there were points when I’d have probably described certain cases that made me elicit a huge sigh before picking up the file as high conflict. Perhaps because they challenged me in ways I didn’t want to be challenged, or triggered things in me I’d rather were left alone. Or perhaps simply because they required more energy than I felt I was able to give.
Does it take two to tango?
My first question in looking at cases that some may traditionally categorise as high conflict, is the following: is this two people who are struggling to have constructive dialogue (through whatever means) on any topic? Or is it in fact one person engaging in practices that give the illusion of it being two people caught up in high conflict?
There is a much greater level of understanding and awareness of emotional abuse, financial abuse and coercive control than there was when I first started work in a family department of a solicitor’s practice in 2001 and rightly so. There is still not enough. Why do I say this? For the following reasons: I see cases being referred out of court for mediation where there have been findings of abuse or coercive control; I’ve spoken to victims of abuse who describe how they felt talked down to, belittled and ridiculed by their ex-partner in a mediation process they felt they had to agree to; I see people who should know better making light of abuse in the name of humour.
In doing screening assessments in mediation I am not making a finding of fact in a way that a judge would and this is, of course, a much lesser burden. I work with people’s perceptions of their own situation. There is discussion about things that happened and examples given of behaviour that the victim felt was abusive or gaslighting. I’m most interested in is how each person feels. Are they concerned about being in the same room as their ex-partner? Do they worry they won’t get a fair settlement? Are they worried about their ex-partner being angry or not liking things they say? All of these are potential clues to issues of abuse and control. Let’s never forget that victims do not always categorise themselves as being victims of abuse.
If you’ve read anything by Bill Eddy from the High Conflict Institute in the US, you will know that he talks about the fact that some people simply are High Conflict People and that it is part of them to have targets of blame. This may well be their ex-partner (and then possibly their lawyer or mediator if they don’t get their preferred outcome). He explains that such people have personality disorders (or are borderline cases) such as (but not exclusively) narcissistic personality disorder.
We have much greater training available to us on such concepts, but we should never lose sight of the fact that we are not qualified to diagnose such traits. It is an essential professional skill to be able to know enough to know when you are not the right person to be in sole charge of a situation and that you may need specialist assistance or to refer a client to a more specialist practitioner.
It is essential that we separate out victim and abuser from the high-conflict label because to categorise it in this way implies that it is two people with equal power in the situation, which is a dangerous misrepresentation of what is actually going on.
Learning to recognise grief
As a nation we are pretty woeful at recognising and understanding grief. Being with another person’s raw emotions is still an uncomfortable experience for many. We seek to minimise it and put it back in the box. This means many people going through a separation may feel unsupported in their grief. This may lead them to minimise or misunderstand the extent of their grief. How many clients think they have done the entire grief process in six months when two-to-five years may be a more common experience?
In addition to this, mismatches in the grief cycle between a separating couple are common. One person has been unhappy and wondering if things will work out for months, years or even decades. The other person has no clue things are bad (or that bad) until they’re told their partner wants to separate. At this point one partner has one foot in their new chapter. The other is in shock and will need some time to grieve before they are equipped to process information or make decisions about the next chapter themselves.
The partner who has made the decision to separate is already in the acceptance phase described by Dr Elizabeth Kubler-Ross and wants to hot foot it into the letting go phase. They want to be in that new chapter with all arrangements sorted. Too often they feel a fortnight or so is a suitable bit of breathing space for their ex-partner to have between being told of the decision and starting negotiations.
The other partner is in shock and may well be in the fight or flight response. Thus they are simply unable to process information or make decisions. It may be some time before they have the bandwidth to join a mediation or negotiating process. Without a sensitive and compassionate approach a court application can be made which adds considerable further pressure. These cases have been categorised as high conflict because it is two desperate people with opposing aims at that moment in time. One desperately trying to move on as they have wanted to for so long, the other trying to work out which way is up, and carve out space to grieve.
I really hope most family lawyers and mediators are now aware of such situations and would explain that pushing a situation may mean it ultimately takes longer, whereas giving the other person suitable breathing space may then mean it’s more easily resolved in a few months, giving an overall quicker timescale. The party entering the grieving process may also require therapeutic intervention before being able to come to the negotiating table, and make decisions.
The truth seeker
I’m sure many practitioners will recognise the client who seeks the truth and demands that the other person must tell the truth. It becomes like a search of holy grail magnitude. It usually manifests itself as focusing on where their ex-partner’s version of events differs from theirs. They do not accept there are different perspectives and they will not agree to disagree. They insist their ex-partner should tell the truth of the situation.
Alternatively, it shows up as strategy planning on a level that Gary Kasparov might describe for a legendary chess match. They try to anticipate their ex-partner’s game and every move that is made. They feel they have been planning this for some time. Each action is a deliberate step in a game to break them or take all the money. They gather evidence, they muse on strategy and they arrive for a meeting with a report to deliver based on their observations. It is a more acceptable place emotionally than facing the fact that their relationship has ended and they may shoulder some blame.
These situations are often seen as high conflict as various red herrings crop up and have to be dealt with, and one party focuses on the other’s behaviour and “lies” rather than looking at what the preferred outcome might be. It can be difficult as a practitioner to have firm and uncomfortable conversations with clients about where their focus lies and how this impacts on the overall ability of both parties to find a mutually acceptable resolution.
Hopefully these different examples explain my thinking that “high conflict” is a catch-all term that applies to many different scenarios and how such scenarios often require different skills and interventions. I quite often quote Albert Einstein to clients “the definition of insanity is doing the same thing over again and expecting a different result”. If the road being travelled is leading to more conflict then it might be time to pick a new route – be that a new skill, an additional practitioner or a new level of understanding about the particular situation. Simply banging your head against the wall and mumbling “high conflict” is unlikely to elicit a suitable outcome for clients, or assist your wellbeing and stress levels as a practitioner. A large number of practitioners I talk to regard high-conflict cases as one of the main barriers to wellbeing and a less stressful job. If we can ditch the high-conflict term and be more specific about the difficulties in a case then it may help us to identify more tailored strategies for dealing with them.