High-Conflict Divorce: What Every Family Lawyer Needs to Know

You won’t be able to reach or manage every high-conflict personality client/ex-spouse/opposing counsel. However, after using these five methods and teaching them for several years, I have found them to be effective most of the time. Here is what every family lawyer needs to know when dealing with high conflict divorce. These tips include what to ask and how to respond.

By Bill Eddy, Family Lawyer & Mediator

Ever lose sleep over a high-conflict divorce? Dread hearing from your high-conflict clients? How about dealing with high-conflict opposing counsel? Most family lawyers would agree that their high-conflict cases take up more time and much more emotional energy than their ordinary cases – sometimes more than all of their other cases combined.

The good news is that understanding high-conflict personalities can help ease your stress and your client’s stress a lot. The bad news is that these personalities appear to be increasing in society, and especially in our courts. Here are five tips that can help you deal with this growing problem.

High-Conflict Divorce: What Every Family Lawyer Needs to Know

1. Forget about changing high-conflict people (HCPs)!

Whether you’re dealing with a difficult client, an out-of-control opposing party (with or without a lawyer), or the most irritating opposing counsel, you will be tempted to point out their bad behavior in an effort to get them to act more reasonably: “Can’t you see what you’re doing?” “You’re a difficult client – just shape up!” “Our profession should be ashamed to have you as a member.”

Such comments don’t help and often make things worse. HCPs are not operating on a rational, logical level when they are misbehaving. They are stuck in defensiveness and lack all awareness of how they contribute to their own problems. They have psychological defense mechanisms that blind them and you can’t break through by talking loudly, softly, in writing, in person or any other way. Just forgetaboutit!

Instead, focus on some of the following techniques. You’ll be much less frustrated, because you’re not expecting to change the person, and you will be less likely to escalate the HCPs in your life. Surprisingly, they will be less likely to start fights with you, and may even appreciate your non-confrontational approach to them.

2. Respond to high-conflict emotions with Empathy, Attention, and Respect!

Whether you are dealing with an HCP or anyone who is upset at the moment, try to connect with the person with a statement that indicates you have empathy for the person (“I’m sorry to see you’re in this situation.” “I know this process can be confusing.”), that you are willing to pay attention to them (“Tell me more. I want to understand.”) and/or that you respect something they are doing (“You’re good at saving and organizing records.” “I can see that you have put a lot of energy into your child.”).

This doesn’t mean that you believe the person or agree with the person. It just means that you want to help them and connect with them as a compassionate human being. With practice, you will find that this calms down many HCPs. Be prepared to use E.A.R. Statements over and over again, as HCPs often slip into upset feelings, out of them and back into them in a matter of minutes.

Of course, “E.A.R. Statements” like this need to be honest, so that you don’t say you empathize if you don’t, or that you respect the person if you don’t. If nothing else seems right, just say “Tell me more.” This lets the person know you want to pay attention to their concerns. And HCPs usually are eager to tell you more!

You can also stop an HCP from talking on and on, by using an E.A.R. Statement. (“I know you’re real upset right now, and I feel bad that you’re in this situation. Let’s focus on what we can do next in your case now.”) Keep in mind that HCPs don’t get the same relief from talking about an upsetting situation that most people do. They don’t seem to “get it off their chest.” Instead, they tell one person after another about how awful things are, perhaps hundreds of times, without feeling better. What they’re really looking for is empathy, attention and respect. So just give it to them!

3. Ask “What’s your proposal?”

CPs spend a lot of time complaining and talking about the past. They are preoccupied with blaming others. It’s tempting to get emotionally hooked into admonishing them to stop talking this way, which usually leads to a big confrontation. Instead, it’s much easier and more productive to simply interrupt and ask (in a calm tone of voice): “Then what’s your proposal? If things were frustrating in the past, what would you propose now to deal with this type of situation in the future.” This puts the burden for solving the problem more on the client or the other party, rather than just trying to solve it on your own, and getting more and more frustrated.

Of course, when someone (an HCP or not) makes a proposal, you need to tell the other party (an HCP or not) to respond by simply saying: “Yes” “No” or “I’ll think about it.” This keeps the situation from escalating as HCPs often get stuck arguing about proposals that were made (“Why didn’t you say that before?” “That’s the dumbest thing I’ve ever heard!”). It’s okay to ask reasonable questions about a proposal, which is different from arguing with a proposal. But then, focus on the response.

If it’s a Yes, write it down and clarify the details. Don’t be surprised that HCPs often argue about every detail, so don’t just celebrate a verbal agreement – work on the details right away and see if the parties agree to each detail. If the response is a No, then simply ask the respondent: “Then, what would your proposal be?” This keeps the parties away from being preoccupied with the other person’s proposal. It’s a great way of managing difficult clients, and it often helps lead to real solutions of the case.

4. You’re not responsible for the outcome! (Just your standard of care.)

With HCPs, your relationship with your client is the most important part of the case. If you have a good relationship, in which you stay matter-of-fact, you will be able to deal with each problem when it arises. If you are too outcome focused, you will miss the importance of the relationship and fight too much with your client and opposing parties and counsel. Think of it as being along for the journey with an untamed pony. Your goal is to stay on the case, through its ups and downs. Ask yourself: “I wonder how this case is going to turn out?” rather than asking yourself how you can “make” HCPs behave as you wish they would.

The less you focus on trying to control the outcome, and the more you focus on working well with your HCP client, the less stress you will have. Make sure to share decision-making with your client and the other party and counsel, if there is opposing counsel. If your client or the others insist on making a bad decision, just point out the consequences for that decision. Keep the burden on them: “It’s up to you. It will probably cost you more. It may cause you to lose parenting time. But it’s your decision. Are you sure that’s what you want?” And one of the consequences can be that you will no longer be able to work with that client, or a larger retainer will be needed.

5. Don’t work harder than your clients!

High-conflict people regularly feel helpless and powerless, so they try to find professionals and others who will work hard to solve their problems for them. However, they usually have skills that they don’t use, because they don’t feel strong enough. It’s important to expect HCPs to work hard at being reasonable in their own cases, including gathering information, writing reasonable emails, making proposals, and choosing their battles. The harder you work at fixing their problems, without expecting anything from them, the more likely they are to simply create more problems. When clients don’t have enough tasks to do, they obsess about ways to defend themselves against what the other party or counsel has said or done in the past, which often leads to new impulsive actions that you will need to clean up.

It’s okay to set limits on high-conflict people, whether they are your clients, opposing parties or opposing counsel, especially if you use E.A.R. Statements while explaining your limits. HCPs generally can’t stop themselves, so you’ll need to say what you can do and what you can’t do, from the start. Don’t set up unrealistic expectations. Let them know how hard they must work with you. Don’t try to prove anything to your high-conflict clients – or high-conflict opposing counsel. Their high conflict behavior is not about you! Save your energy for your family and friends.

When in doubt, get consultation and support from your colleagues. Otherwise, these cases can drain you dry, instead of giving you the satisfaction that can come from helping someone who really needs your assistance, who may be able to make progress with your skilled efforts – and patience.

None of these tips are guaranteed. You won’t be able to reach or manage every HCP. However, after using these methods and teaching them for several years, I have found that they mostly work. While high conflict cases may take longer than others, you can help most of your HCP cases settle or help your clients present their cases in court in a fairly reasonable manner – and feel a great sense of accomplishment too! Good Luck!

Bill Eddy, LCSW, JD, CFLS has been a family law attorney and family mediator in San Diego, California, for over 18 years. Previously he worked with children and families for 12 years as a Licensed Clinical Social Work. He is the President of the High Conflict Institute and the author of several books, including High Conflict People in Legal Disputes (for lawyers) and SPLITTING: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder (for clients). Mr. Eddy regularly provides seminars and consultations for attorneys, mediators, judges and others dealing with high-conflict cases.  www.HighConflictInstitute.com

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