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Advanced prep can aid in mediation with difficult personalities

|Written By Jennifer Brown

Lawyers who deal with emotionally charged mediation and arbitration may often feel ill equipped to deal with the personality conflicts they face, but a panel discussion Monday examined tools to manage them better.

In mediation lawyers may be dealing with individuals who may not know they are suffering from a personality disorder. (Photo: Shutterstock)
The panel, hosted by the Ontario Bar Association and entitled “Managing Personality Disorders in Mediation,” looked at how those embroiled in often-volatile mediations can better understand and manage those they are dealing with.

Speakers included Howard Hurwitz, a social worker who handles mediation in dealing with “high conflict” families, Mary Truemner, vice-chairwoman of the Human Rights Tribunal of Ontario, and Nathalie Boutet, of Boutet Family Law, and Michael Cochrane, a family lawyer with Brauti Thorning Zibbaras LLP.

The goal of the panel was to help those involved recognize common personality disorders and provide some practical strategies for improving mediation when personality disorders are present.

“We run into very difficult people facing difficult, emotional problems. We are hoping with the panel to get a handle on how can we diagnose these people, figure out what they’re all about and then have a strategy for dealing with them, whether as a mediator or as a lawyer, and also to make sure we’re looking after ourselves in the process if acting as a mediator,” said Cochrane.

Often, though, in mediation lawyers may be dealing with individuals who may not know they are suffering from a personality disorder or may be diagnosed and are in denial.

Hurwitz outlined four personality disorders including:

• Borderline: people who have erratic and unpredictable behaviour.
• Narcissistic: focused on themselves; it’s all about them and no awareness of anyone else in a process. In family mediation this may occur with people who speak to what is in the best interest of the child but really are focused on their own best interest.
• Antisocial: no regard for rules. They have their own set of rules and trying to talk about a regulatory framework is something very difficult and challenging.
• Histrionic: a need to be the centre of attention and often call with hysterical reaction to latest crisis.

Hurwitz said there are four helpful steps in trying to reduce hostility or problematic behaviour.

• Build trust and rapport.
• Be strategic and objective and provide structure; provide an agenda for the mediation session and make sure the parties have input on the session.
• Stay grounded in the here and now; ensure there is some reality perspective to what is trying to be done.
• Be clear about consequences.

When dealing with personality disorders Hurwitz said it is important to provide structure and limits to your relationship; maintain professional boundaries; allow some brief venting; empathize but don’t condone behavior and avoid criticism and anger.

“Many of these people have a need to talk about how they have been wronged prior to getting to you. I find it helpful to allow some brief venting and then redirect and reframe,” he said.

However, Truemner who does mediations and is also an adjudicator, noted it is difficult to “diagnose” people, even with access to medical files, and that it can be often impossible to have a full picture of someone’s mental health. She also cautioned it can be problematic relying on various strategies.

“I’m a little bit wary of pigeon-holing people,” she said. “I treat each party as unique, bearing in mind that I have a duty to accommodate disability myself because I’m providing a service.”

Often during a mediation/adjudication Truemner said she will use medical records to acknowledge briefly to the person that she understands their situation.

“Just to let them know that I get it and that I understand how hard it is,” she said. “It shows that I’m open to talking about disability and open to understanding how it requires accommodation.”

She noted that the definition of disability does include a mental disorder. For example in the recent Graff v. Jones Le Salle Real Estate Services Inc. case, personality disorder was mentioned where it was recognized as a disability and discrimination was found for failure to accommodate.

“One of the ways we at the tribunal accommodate — perhaps with obsessive compulsive disorder who gives us a heads up — I take a long time to make decisions about things and not the half day normally scheduled. We may even ask for medical documents to support the request for accommodation,” she said.

“Dealing with people different disabilities does require more time.”

Truemner agreed that people won’t always be self-aware and know they have a personality disorder and you need to be careful with making assessments.

“There’s a danger in assuming someone has a personality disorder based on your own observation. They may think you are going to prejudice the process because of that perception. You might jump on a bandwagon and go down the wrong road,” she said.

She also noted the importance of “active listening” and demonstrates that you have read the file, and be slow and focus.

“Just say ‘How are you, how are you doing?’ and get ready to listen, because it’s going to take a long time for them to describe how they’re doing but you’ll be able to open that door to talk about disability,” she said.

Build extra breaks into the schedule and take your time, Truemner suggested.

“Repeat legal principles and their application; I’m very honest about what I think is going on in a file. It builds trust and gets to a point where I can ask them, ‘Do you really think your prediction is going to pan out?’ I get to open those doors more easily once I’ve gained that trust,” she said.

Boutet spoke to “triggers” that mediators should watch for in themselves and clients to avoid emotionally veering off course.

“Our ability to think and reason diminishes when we are triggered,” she said. “As a practitioner, lawyer, mediator if you get triggered by difficult personalities you will not necessarily be attentive to all of these things we are supposed to be attentive to.”

“Often we are placing them in front of really horrific choices where they get triggered, get emotional and we ask them to evaluate the good and the bad of the choices.”

Boutet offered two tips to avoid triggers going into mediation.

• Set an intention: a determination to act in a certain way and a way to bring about, forcing you to clarify what you want. Commit your intention to writing. Define who you will be and what your intention will be.
• Self-care: i f you don’t get proper sleep or eat right you will be more susceptible to being triggered.


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