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Professor Tania Sourdin

Australian Centre for Justice

Innovation (ACJI)

Monash University

Managing the challenges of workplace dispute resolution

High conflict cases

Our Objective – Serious, careful and

dignified dispute resolution

Issues –

– Expectations and perceptions of clients

– Understanding, communication skills and access

to information

– High Conflict Behaviours.

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PERSONALITY DISORDERS: Rigid patterns of behaviour; Chronically distressed; chronic Interpersonal dysfunction; MAY be unable to function in DR

MALADAPTIVE PERSONALITY TRAITS: Appear normal, but inappropriately upset, highly exaggerated, distorted logic; MAY resolve conflicts and engage in DR with careful management

REASONABLE PERSONS: appropriately upset about conflict issues; able to settle and resolve conflicts and engage in Dispute Resolution.

Significance of Behaviour

in Dispute Resolution - Bill Eddy

What % of disputants exhibit HCB’s?

“An enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment”

(DSM-IV rev manual 1994).

Estimated that 14.8% in US population (2002 Study) have Axis I or Axis II problems.

Estimated that a further 10% have maladaptive personality traits

Some DSM disorders may result in a less chance of a person taking Court action – depression, anxiety.

Cluster B personality disorders include borderline, narcissistic, antisocial and histrionic. Those with these disorders or traits may be MORE likely be involved in intense, ongoing conflicts.

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Disputants

Basic day to day strategies -

1.Process guidelines

2.Communication skills – explanation,

questions, breaks, issue identification and

checking.

3.Summary, reflection and using ‘tags’

How do you introduce self, role, dispute

resolution process, restrictions and

communication?

What do studies show?

Prof Jennifer Lerner (Harvard)

Studies on rats

Studies on people

Preparation helps

Process explanation assists

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Basics..

Allow time to express – limit to brief overview

– 3 – 4 minutes.

Identify and check issues (neutral and mutual

if possible).

– Contract Agreement

– Delay Timing

– Poor workmanship Quality of work.

Summary and reflection

Can I just check that I have heard you

correctly? I understood you to say that you

had entered into the …and then I think you

said…and then you talked about…and then

you said…did I hear you correctly?

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Strategies to use…

Repetitive - I think I heard you talk about

….earlier – so this is clearly important to

you?

Upset and anxious – Use an EAR response

or try another strategy – for example, short

break (with or without private sessions),

explanation of process etc.

Should another approach be used? (see

work later today).

4 Key Skills for HCBs Bill Eddy

1. CONNECTING with E.A.R.

2. ANALYSING realistic alternatives and outcomes

3. RESPONDING to inaccurate information

4. SETTING LIMITS on high conflict behaviour.

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Connect with E.A.R. (Bill Eddy – High Conflict

Institute)

If frustrated by emotional reactivity and

thinking distortions – it is easy to get

“emotionally hooked,” and to withhold any

positive responses. It’s easy to feel a

powerful urge to attack or criticize.

Instead, consciously use your E.A.R:

• EMPATHY

• ATTENTION

• RESPECT

E.A.R. Statements

Empathy – I can see how important this is to you

– I understand this can be frustrating

Attention – I want to understand what you are saying

– Tell me what’s going on

Respect – I can see you have put a lot of thought into this

– I respect your efforts on this

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E.A.R. – words, tone and action

• Example: “I can hear that you are

frustrated that I can’t answer your

question today. I will pay attention to

your concerns about this issue and any

information that you want to provide. I

respect that it is hard to come to

mediation and know that you are

committed to solving this problem, and

I look forward to helping you. Once I

have more information I will be able to

do more.”

Some cautions about E.A.R.

Avoid believing or agreeing with content.

Avoid volunteering to “fix it” for them (in

an effort to calm down their emotions).

Avoid rejecting them or having an angry

confrontations with them because of their

heightened emotions.

You don’t have to listen forever.

If doesn’t work, focus on tasks (See this

afternoon).

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Showing your E.A.R.

Empathise; don’t argue with their logic – try to understand it. You won’t talk them out of their fears, but you can empathise with their fears.

Pay attention: Reduce their fears in the process, by reassuring that you are not going to make assumptions or quick decisions; pay attention to their concerns.

Be respectful: Put more energy into clarifications, to make sure you understand how they are thinking, and what they heard you say.

The style of engagement?

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The elephant in the room...

Shapiro - core concerns

Autonomy

Affiliation

Role Status

Appreciation

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Appreciation

Not understood, devalued, unheard

Studies of newlywed couples

Replicated in organisational studies

Predicting divorce

Analysed records of marital conflict discussions.

Predict marital outcomes over a 6 year period using just the first 3 minutes of marital conflict discussions.

For husbands this prediction improved as the groups diverged in the remaining 12 minutes.

For wives the prediction remained equally powerful for the remaining 12 minutes as it had been in the first 3 minutes

1999 Carrère S; Gottman J M

Predicting divorce among newlyweds from the first three minutes of a

marital conflict discussion 38(3) Family process 293-301

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Autonomy buckets

Unilateral decision

Inform Consult Negotiate

Autonomy - ACBD

Always

Consult

Before

Deciding

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Perceptions

Ladder of Inference

Senge, P. et. al. (1994) The Fifth

Discipline Fieldbook: Strategies

and Tools for Building a Learning

Organization

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Ladder of Inference - Example

I refuse to listen and want to make my point

They will try to trick me

I cannot trust the mediator

Government employees are not trustworthy

The mediator is employed by the government

I am required to argue in the session

High Conflict Behaviours

1. Rigid, repeat failed strategies

2. Unable to accept or heal from a loss

3. Negative emotions dominate thinking

4. Unable to reflect on own behaviour

5. Difficulty empathising with others

6. Preoccupied with blaming others

7. Avoid responsibility for the problem or the

solution

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Flipping your lid…

Inside your brain

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Bodily regulation

Emotional balance

Attuned

Communication

Response Flexibility

Insight

Fear Modulation

Intuition

Moral Awareness

Empathy

9 Functions of the Mid Pre-Frontal Cortex Siegel

The role of hormones

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Cycle of high conflict thinking

1. MISTAKEN

ASSESSMENT OF DANGER

2. BEHAVIOUR

that’s AGGRESSIVELY

DEFENSIVE

3. NEGATIVE FEEDBACK

Three Step Cycle

1. Mistaken Assessment of Danger Person with High Conflict behaviours feels internal distress,

but it feels like external danger

(Being Abandoned, Treated Inferior, Ignored, Dominated, etc.)

2. Behaviour that’s Aggressively Defensive HCB verbally, physically, legally, financially, etc. attacks the perceived source of danger

3. Negative Feedback HCB gets negative feedback (most feedback feels negative to

people with HCBs), which escalates them

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The Issue is Not the Issue

In high-conflict cases, the issue is not the issue. The

high-conflict thinking is the issue, with distorted

perceptions and expectations.

For many people with high-conflict behaviours, they

are stuck with their their negative emotions and

can’t easily access their problem-solving skills.

To handle them, you need to learn to communicate

with the rational part of the brain.

Talking to the Rational Slow Brain

Tone of voice and body language is amazingly

important: Calm, confident, firm

Avoid personal attacks: these escalate

defensiveness and bad behaviour

Avoid threats: these escalate the HCBs

Avoid logical arguments in times of stress

Avoid giving Negative Feedback.

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Increasing Defensiveness and Impulsivity in Younger people

Employers are complaining about young employees who can’t take ordinary performance feedback – they react angrily and take everything very personally.

Marshmallow and cookie studies: 4 yr. olds offered 1 now or 2 if they waited a little. 14 years later, those who grabbed 1: more irritated, more fights, less able handle stress and 210 pts. lower on SATs.

Daniel Goleman

Working With Emotional Intelligence (1998)

CAUSES

1. Biological factors, such as genetic tendencies and temperament at birth.

2. Early childhood factors, such as early parenting “attachment” disruptions, child abuse or other trauma before age 5.

3. Social learning, such as “invalidating environments”: being ignored for positive behaviours and getting more attention for mood swings and extreme emotions; family and community tolerance of bad behaviour; role models with extreme personalities.

4. Cultural changes, like increasing narcissism, drama, mood swings and violence in popular culture.

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High Conflict Behaviours

Two key issues:

#1: Some lack an ability to be self-aware and

can’t reflect on their own behaviour.

#2: Some lack an ability to adapt their

behaviour to changing circumstances. They

repeat mistakes.

High Conflict Behaviour Types

“Love you, Hate you” Behaviours

Often Angry, Sudden Mood Swings

“I’m Very Superior” Behaviours

Demanding and Demeaning

“Always Dramatic” Behaviours

Superficial, Helpless, Exaggerates

“Con Artists” Behaviours

Deceptive, Manipulative, Hurtful

“I’ll Never Trust you” Behaviours

Fearful, Resentful, Suspicious

Bill Eddy “It’s All YOUR Fault!” (2008)

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Setting Limits on High Conflict Behaviour

Those with HCBs need limits because they can’t stop themselves

With HCB clients, focus on external reasons for new behaviour, usually a policy, guideline or by reference to the applicable law:

“Our policies require me to …” “The law requires…” “The process that is set out in the legislation

means I have to…”

Setting Limits (con’t) Educate About Consequences

People with HCBs do not connect realistic

CONSEQUENCES to their own ACTIONS,

especially fear-based actions.

They feel like they are in a fight for survival,

which blinds them to realities.

Their life experiences may have taught them

different consequences than most.

They can be educated by a caring person.

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Setting Limits (cont’d) Set Personal Limits

About when the session will occur

About how long the session will go for

About what you will discuss

About who will be present

About phone & email access to you and

your staff

About what they need to bring

About what they need to do before

Setting Limits (cont’d) Set Organisational Limits

What authority is there in your

organisation that can set limits beyond

those than you can set alone?

What policies and procedures exist?

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Finishing processes with HCBs

Lay the groundwork for termination of process from the start, with clear expectations & limits.

Avoid impulsive terminations or session conclusions – an abrupt end can trigger a memory of all of the client’s bad endings & lead to potentially uncontrollable emotions and bad behaviour (stalking, more litigation, etc.)

Suggest that your views are incompatible

Show empathy, attention and respect, even while concluding the process.

Applying HCB Skills

Work hard at appearing neutral

Have people make as many process decisions as is possible

Ask “What do you think about that proposal?” rather than “How do you feel about that?” so don’t open up emotions.

Prepare for breach of agreements

Avoid pressing them for agreement; hold back and keep burden on them. Yes, no, maybe (proposals).

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NEGATIVE ADVOCATES

Wanting to help is often driving force

– Believe distortions of upset client with HCB

– Misled by HCB’s charm, hurt, fear, anger

– Advocate against perceived enemies

– Protect them from natural consequences

– Escalate conflict inadvertently

– May also have high conflict personality

Closing Points about HCBs

Some people in dispute have long-term personality

problems

Behaviour can be mostly unconscious

Some want relief from their constant distress

Some people push boundaries out of desperation, not

out of intent to be difficult

Direct confrontation brings resistance and escalation of

blame, not insight for some people

Most people have problem-solving skills, which you

can support