Seeing dead people: the first step in high-conflict negotiations

In "The Sixth Sense," a child tortured by visions of ghosts explains to his psychiatrist, "They don't see each other. They only see what they want to see. They don't know they're dead."

Mediators, your most high conflict parties are not going to know that they are high conflict. They are only seeing what they want to see, which is that the other person is causing a lot of problems, and they are blameless victims.

This couple will be much more engaged in finger pointing than goal setting. You feel as though each step of progress results in two steps back. Each of the parties will either begin to shut down, or escalate, to a greater degree as the session proceeds.

You have to tell them.

Directly.

"I notice a lot of conflict between each of you, and I wonder if it's impeding our progress. Are you noticing the same thing?"

If my clients can acknowledge the conflict, I stop what we're doing and tell them a little bit about how the brain responds to conflict. We go into survival mode, which interferes with executive function - meaning, our ability to think logically, make good decisions, strategize, and empathize is impaired. I tell my clients this is completely normal; human beings have evolved to react to conflict with fight, flight or freeze mode, not to react to conflict by sitting down next to someone at a table.

The caveman who ran from the woolly mammoth survived; the one who asked the mammoth why it was charging ... did not.

So, I explain, if sitting here feels really hard to do, that's because it is really hard to do, and our brains are not wired for it. The amygdala, in response to danger, has hijacked executive functioning, and we need to help the thinking brain take back control.

This explanation is extremely effective because it allows the mediator to call the parties out on their behavior, while providing the clients with an excuse to not blame themselves or each other. Taking the discussion sideways into psychobiology gives everyone a break and stops conflict from escalating. Even better, because the brain cannot simultaneously be in survival mode and thinking mode, by making the clients consider their conflict response, the mediator has helped them overcome the amygdala hijack.

Not all clients will agree that there is tension in the room. When they are unwilling or unable to acknowledge the conflict, it might sound like, "We're not having a problem, HE is just an a**hole," or, "Talking about that isn't important; we just want to finish the divorce."

In other words, like the most tormented ghost in the Sixth Sense, the most conflicted couples are seeing only what they want to see.

The highest-conflict couples have to see it for themselves. How do make them see what they don't want to see? That's next week.

A mediator's primary function is to manage the structure of the process in a manner that leaves the participants free to create their own outcomes. The mediator must learn to recognize conflict and address it in a way that leaves the participants feeling validated. Most couples want to be successful in mediation; when provided an opportunity to de-escalate, they'll take it. Directly addressing conflict is scary for mediators. After 16 years, calling out conflict still makes me feel like little Haley Joel Osment, scrunched in bed with the covers pulled tight to his chin, whispering to a ghost, "I see dead people." But, if he could do it, I can do it, and you can do it, too.