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Bullying – When the Parties Leave the Mediation and Enter the Schoolyard

October 11, 2014

The inspiration to write about bullying in mediation came from at least two sources recently.

First, this week I saw an ad on TV about the website http://www.stopbullying.gov/ which announces that October is “Bullying Prevention Awareness Month.”

The foregoing website defines bullying this way:

Bullying is unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance…. Kids who bully use their power-such as physical strength, access to embarrassing information, or popularity-to control or harm others. Power imbalances can change over time and in different situations, even if they involve the same people.

See, http://www.stopbullying.gov/what-is-bullying/definition/index.html .

Second, last week Mark B. Baer, a perceptive colleague and a friend, wrote a response to a recent post of mine (https://karpmediation.wordpress.com/2014/10/02/it-is-very-hard-for-people-to-give-ground/ ), suggesting that the following was perhaps one cause of why some disputes do not settle in mediation:

The percentage of people with diagnosable personality disorders such as borderline personality disorder and narcissism and people with high conflict personalities have increased with each generation.

Both the TV ad and Mark Baer’s comment led me back to some of the written materials that I kept from an excellent program I attended in June 2014 on “Negotiations with Difficult People,” presented by another colleague, Tim Corcoran, and by Retired Judge Chris Warner.

(Per them by the way, “Difficult People” includes, among others, Antisocial, Histrionic, Narcissistic and Borderline individuals, as defined by the Diagnostic and Statistical Manual of Mental Disorders, aka “the DSM.” These are the same types of people to which Mark Baer referred in his reply, above.)

Corcoran and Warner also remark in their materials that bullies are among the types of High Conflict Personality People that we may come across in mediation.

I also have some fine written materials from Bill Eddy who is the President of the High Conflict Institute, an attorney, a therapist, a mediator and a lecturer.

All of these materials contain really excellent suggestions on how, as a mediator, to recognize and deal with high conflict people, how to listen and talk to them, how to give them empathy, attention and respect without agreeing or disagreeing with them, how even to attempt to divert their attention from the emotion of it all to the problem solving that mediation needs in order to result in resolution.

That doesn’t mean that the materials guarantee that a case with a bully will settle however.

In fact Retired Judge Warner suggested, during the program that I attended, that, although most cases do settle prior to trial, those that go to trial are often propelled there by the “Difficult People” participating in them on one side or the other, or both.

In any event, one idea in Bill Eddy’s materials caught my eye as I was writing this:

To manage our own reactions as mediators to high conflict personalities (e.g., bullies in this piece), Eddy suggests among other things that we should view them as five-year-olds with insecurity issues.

That’s where the mental picture came to me of the parties leaving the mediation and entering the schoolyard.

On the stopbullying.gov website, one of the suggestions of what to do in response to bullying is to “walk away and stay away.” See, http://www.stopbullying.gov/kids/what-you-can-do/index.html

Often that’s the reaction I have seen in mediation: when one side has perceived that it is being bullied by the other side, the response has been to get up and leave, or not give in (i.e., not agree to the bully’s demands).

Perhaps that is the right response (perhaps not), but often it is the impatient one.

As Bill Eddy suggests, dealing with High Conflict Personalities takes time [lots of time, I think], attention, patience, empathy and respect, to get them to focus on and use their problem solving skills.

The rub is that often the other side cannot be kept patiently waiting for all of that to happen and/or the financial constraints on the mediation won’t allow for it.

In any event, working with a bully is difficult at best and impossible at worst.

Perhaps that is why Mark Baer and Judge Warner acknowledge that a case with a difficult person (such as a bully or other High Conflict Personality) may not settle.

I agree, of course, but remain cautiously hopeful notwithstanding.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. For more information, go to http://karpmediation.com .

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