Dr Oz Susler & Dan Berstein

In conflicts, there are times when one party gives up on connecting with another party and begins to dehumanise them. As ADR practitioners, one of our responsibilities is to prevent that from happening, and yet there are still times we may even find ourselves so distressed that we end up writing a person off too.

In a sense it is natural, as human beings to mentally separate ourselves when we encounter someone who seems different, unfamiliar, or atypical and to become guarded when a person challenges us. We all have biases. But that is something we must be conscious of and guard against as ADR professionals – whether we are in the role of mediator, arbitrator, ombuds, or any other type of dispute resolver.

In this article, we demonstrate the pervasive and impactful attitudes that unfortunately can lead practitioners to have biases against those who may have mental health differences – and we share tools to prevent parties from being written off.

We begin by presenting some dispute resolution guidance circulating in Australia that teaches professionals to see someone who seems to have a possible mental impairment as a “difficult” or “high conflict” hazard to handle, avoid, or engage with using a different style of mediation than we might normally pursue. We conclude with resources to help practitioners prevent and address this problem of parties being written off.

Australian Guidance to Write People Off As “High Conflict”

In the Australian ADR literature, there are instances where people regarded as having mental disorders and related impairments have been inappropriately deemed to be “difficult people” or “high conflict people” and unfit to receive normal mediation.

This phenomenon, where well-meaning mediators use proxy labels to suggest that people with mental impairments need to be treated differently (often with briefer or more restricted communication), is sadly somewhat common. It has been well-documented as problematic, including in Ending the Epidemic of Accidental Personality Disorder Discrimination by Well-Meaning Mediators.¹

Below is an overview of some examples in the Australian discourse where these ideas have been spreading (note that much of this guidance is bundled with de-escalation interventions or communication ideas to have some kind of different process for including so-called “high conflict people” but this well-meaning paternalism is often still based on the stigmatizing assumption that these people are not reachable for normal communication).

Also, we note that we present the below five lessons from this guidance as a criticism, and we do not recommend people make guesses about who may be living with a mental impairment or profile those people for different treatment. What you should not do:

~~1: Try to guess who has a personality disorder or related disabling mental impairment~~

Resolution Institute provided a 2023 training to “identify five personality types” which are derived from clinical mental disorders as part of the “New Ways for Mediation” model that teaches a different type of mediation which avoids some of the aspects of mediation normally available to parties.²

~~2: Assume that any issue from the person is due to their impairments and not a legitimate issue~~

The Council of Australian Tribunals (COAT) Resource Library has a 2022 resource posted in their Resource Library, called “Working Effectively with High Conflict People.”³ Again, there is a focus on personality disorders including a chart of “5 High Conflict Personality Types” listing narcissistic, borderline, histrionic, antisocial, and paranoid (which are 5 clinical personality disorder diagnoses). The resource includes a mantra for dismissing the so-called “high conflict person’s” complaints and focusing instead on writing them off with the idea that any problems are due to their presumed-to-be mentally impaired personality: “The issue’s not the issue. The personality’s the issue.”

~~3: Have briefer communication with someone you believe might have a “high conflict” mental impairment~~

The State Government of Victoria State Services Authority provided a 2011 guidance document called “Dealing with High Conflict Behaviours”⁴ that discusses “working with a difficult person,” “identifying high conflict applicants,” and “keep[ing] encounters with a difficult person brief” – concluding that “you want to close the conversation and remove yourself from their presence.”

QLS Proctor has a 2020 post, “Addressing high-conflict personalities” recommending people try responding to the “HCP” (high conflict person)” using a BIFF method to give briefer communication.⁵

~~4: Try to avoid dealing with someone whom you believe is a “difficult” or “high conflict” person~~

The Family Law Section, Law Council of Australia posted a 2024 article on LinkedIn called “Dealing with Difficult People and Behaviors”⁶ which includes several strategies. The first is: “Strategy 1 – Don’t deal with them. Identify them early on and decide if you need and want to deal with them.” This comes after the article introduces four personality disorders as being related to being a so-called difficult person, saying “Difficult people or high conflict people tend to have one or more of four types of Cluster B personality disorders.”

Shepherds Family Law and Mediation Specialists says the “HCPs” will never change and urges readers to consider whether they actually want or need to work with them: “Personalities form by age 5 or 6, and then remain stable through life. Whilst individuals can modify their adult personalities, it takes great effort and generally requires professional assistance. HCPs lack insight and willingness to do so. You will therefore not change the HCP – do not try to do so. Instead, consider how you can work with them. Alternatively, consider whether you actually want to or need to work with them.”⁷

~~5: Assume the person cannot ever change and you should forget about even discussing their emotions because they are not normal with their emotions~~

The Divorce and Separation Hub has a 2022 post, “Are you negotiating a ‘High Conflict’ personality?” that explores those same 5 mental disorder-inspired personality types and writes, “It can be difficult to admit it, but there’s ultimately no way to resolve a ‘High Conflict’ situation with logic or persuasion. You will experience chaos, stress and confusion, while the High Conflict Individual will simply play out their life patterns. Others have tried to change them, without success, leaving a trail of frustration and disappointment.”⁸ It suggests one should take “the ‘forget about it’ approach” and forget about “discussions of emotions” due to the presumption that so-called “high conflict people” don’t experience normal emotional processes and will instead “carry around a feeling of being helpless, vulnerable, weak and like a victim-in-life.”

Approaches like the ones above, teaching practitioners how to identify people as potentially having a disabling mental impairment, perhaps fitting the five personality disorder categories often explicitly being described in discussions of “high conflict personalities” – and teaching how to target these people, specifically, with different interventions based on those private working theories – have also been taught at some Australian universities.⁹

How Can We Set Boundaries Without Writing Parties Off?

Corresponding to each of the five ideas above, we present a corresponding list of five alternative suggestions below that we hope you will consider, instead of writing parties off by assuming they are too “difficult” or “high conflict.” We also include resources to assist you to adopt this trauma-informed and procedurally fair approach. What you should do:

1: Provide trauma-informed accessibility options to all parties without asking them to disclose their disabilities or trying to guess them

Dispute resolution professionals can present a menu of accessibility options to all parties as part of their intake and process – they can trust the parties to ask for whatever accommodations they might need, ideally without forcing anyone to disclose a disability, because mediation is a process where mediators aim to accommodate everyone. Likewise, trauma-informed practices help us realize that all parties may have experienced different traumas with different, personal trauma responses. We can endeavour to provide a safe, empowering space for them using trauma-informed approaches, which do not require that we make any guesses about their circumstances or compel their disclosure.

To access some free resources that provide tools anyone can use to practice more accessibly using universal design principles, or to become trauma-informed, visit www.biasresistantcourts.org. This is part of a project funded by the American Arbitration Association – International Centre for Dispute Resolution (AAA-ICDR) Foundation and produced by the CUNY Dispute Resolution Center.

2: Listen to people and honour their self-determination

Like anyone else, practitioners have their own biases and values, but the key is to prevent any personal ideas regarding a party from getting in the way of achieving a fair and impartial process for all. Instead of labelling people based on their mental health and their behaviours and profiling them for different treatment, we should endeavour to give all parties choices about how they choose to have the process proceed – and avoid any negative stereotypes and potential discrimination against parties. All parties should be given accessible options for how to engage in the process instead of facing practitioners who make judgments about them and take those decisions away from them. Any changes from the practitioner should be based on impartial standards that are followed with all parties, as opposed to singling out those perceived as “difficult” for different treatment.

3: Be equally available as a communicator to all parties

Instead of writing people off as “difficult” or “high conflict” people when we are distressed or irritated, it is better to have real plans for challenging behaviours. Just like anyone who lives in a fire-prone area must have a fire plan, mediators should have a behaviour contingency plan to address such issues in a mediation. Two of the cornerstone values of mediation are to offer a process that is fair and impartial. The same two values are arguably the most fundamental reasons for developing a behaviour plan. To attain such fairness and impartiality, it is essential to restrain the mediator’s decisions made in the moment and instead, defer to a set of behavioural criteria which were established prior to commencing the mediation process.¹⁰ A well-drafted behaviour plan should be clear and based on objective evidence. Such a plan should include guidance on how to address problematic behaviours with relevant reflective questions. Another strategy is to assess the said behaviour based on universal criteria. This includes asking what the general criteria is for when this specific type of behaviour is a problem (instead of singling out people or their personalities as the problem).¹¹

Some resources for making a behaviour plan are available at www.biasresistantcourts.org and as part of the paper, Ending the Epidemic of Accidental Personality Disorder Discrimination by Well-Meaning Mediators, accessible at https://scholarship.law.missouri.edu/jdr/vol2024/iss1/5/

4: Never screen out parties based on guesses or knowledge that they may have a mental impairment

If you have to decline service to anyone, ensure it is not based on guesses they have some kind of impairment like the so-called “high conflict” mental impairments described above – and that it is not based on race, sexual orientation or any other protected identity characteristic. Avoid declining service to anyone and – if you must – use consistent, behaviour-based protocols.

5: Refrain from writing someone off as unchangeable or not worth discussing emotions with

It is important, as a practitioner, to keep an open mind about how one ensures the process is inclusive of all parties –and to also model this when one party writes another off. Practitioners should ideally, as part of their process, encourage the party who wrote another off to explain/explore why they did so and – if possible – engage in a dialogue with the party they wrote off. The aim for the practitioner is to help the parties understand one another’s behaviours, to improve the communication between the parties, and encourage them to connect instead of writing each other off.

Parties may still write one another off based on their own biases, but the hope is that the ADR practitioner’s process will provide some support and clarity to assist parties to see that the practitioner, at least, modeled inclusivity and transparency and demonstrated consistent open-minded responses to challenging behaviours (while also having clear, consistent boundaries).

Conclusion

Challenging behaviour can be so distressing that it often becomes tempting to assume some people are, themselves, the culprit and place them in a different category. Instead of writing anyone off, dispute resolution professionals can rely on consistent, impartial approaches that are accessible and empowering for all parties.

Additional resources for managing practitioner distress and planning for challenging behaviors can be accessed from the Demystifying Distress program co-sponsored by the Mental Health Safe Project, Mediate.com, the Association for Conflict Resolution (ACR), the Academy for Professional Family Mediators (APFM), the National Association for Community Mediation (NAFCM), and the International Institute for Conflict Prevention & Resolution (CPR). It is viewable at https://mediate.com/demystifying-distress

Author Biography

Dr Özlem Sűsler is a graduate of the University of Melbourne and La Trobe University. She holds degrees in Arts, Education and Law and has been admitted as a Barrister and Solicitor of the Supreme Court of Victoria.

Özlem is a senior lecturer at La Trobe University, School of Law, where she coordinates and teaches ADR and Contract Law in the JD and LLB programmes. She is the immediate past director of the JD Programme. Dr Susler has researched and published internationally on ADR in the fields of international commercial arbitration and the scholarship of learning and teaching. More recently she has conducted qualitative research into the experience of Autistic persons engaging in ADR processes (publication forthcoming). Dr Susler has also played a key role in coaching La Trobe Law students in various ADR Mooting competitions. She is a graduate of the Chartered Institute of Arbitrators, the Australian Institute of Company Directors and an AMDRAS accredited mediator.

Dan Berstein is a mediator living with bipolar disorder who uses conflict resolution best practices to promote empowering mental health communication and prevent mental illness discrimination. His company, MH Mediate, has helped thousands of professionals and organizations be empowering, accessible, and non-discriminatory toward people with disclosed or suspected mental health problems. Dan holds degrees from the Johns Hopkins School of Public Health and the Wharton School. He is the author of the 2022 book, Mental Health and Conflicts: A Handbook for Empowerment.