This is a beginning to intermediate level course. After completing this course, mental health professionals will be able to:
This course examines the dynamics of four high conflict personalities that are increasingly common in today’s legal disputes. The instructor provides four key steps and 20 skills to apply in analyzing and assisting clients involved in these difficult cases. Opportunities for mental health professionals in legal disputes are examined. Personal and legal risks are considered for those in four distinct roles: private confidential therapist, court-ordered therapist, psychological evaluator, and expert/consultant/coach for one party. This course provides a good overview of handling personality disorders in any context, especially legal disputes, with numerous interesting case examples.
Much of the material contained in this course is drawn from the instructor’s book: High Conflict People In Legal Disputes (2006), available at www.janispublications.com (formerly High Conflict Personalities: Understanding and Resolving Their Costly Disputes).
CHAPTER 1: An Enduring Pattern Of Blame
CHAPTER 2: Borderline Personalities In Legal Disputes
CHAPTER 3: Narcissistic Personalities In Legal Disputes
CHAPTER 4: Antisocial Personalities In Legal Disputes
CHAPTER 5: Histrionic Personalities In Legal Disputes
CHAPTER 6: Negative Advocates: The Enablers
CHAPTER 7: Bonding
CHAPTER 8: Structure
CHAPTER 9: Reality-Testing
CHAPTER 10: Consequences For HCP’s In Legal Disputes
CHAPTER 11: Confidential Psychotherapist
CHAPTER 12: Court Appointed Psychotherapist
CHAPTER 13: Psychological Evaluator
CHAPTER 14: One Party’s Expert/Consultant/Coach
CHAPTER 15: 10 Tips For Avoiding The Role Of Defendant
Everyone knows someone with a High Conflict Personality.
“How can he be so unreasonable? So totally rigid and self-centered?”
“Why does she keep fighting so much? Can’t she see how destructive she is?”
“Can you believe they’re going to court over __________?” (You fill in the issue)
How often have you asked yourself these questions? About coworkers? Clients? Friends? Neighbors? Family? Or someone who is taking YOU to court?
For the past 30 years, I have asked myself these questions while handling disputes in communities, schools, businesses, families, and the courts. Over the past decade, I have observed a dramatic increase in high conflict legal disputes – driven more by personalities than by legal or financial issues. Perhaps half of all legal cases that go to trial today involve one or more parties with a High Conflict Personality – driven more by internal distress than external events.
After handling over 1,000 legal cases from three professional points of view - as an attorney, mediator, and clinical social worker - I have recognized some surprising patterns to the high conflict cases that are increasing in our society and overwhelming our courts:
9. Of your high conflict cases, what percent seem driven primarily by a mental health problem experienced by one or both parties, rather than a legal issue? 52.7%
For the next few questions, use the following definition: “Someone with a personality disorder generally exhibits a long-term pattern of distress, extreme thinking, difficulty managing emotions, and frequent interpersonal difficulties. For those with personality disorders, their extreme behavior and distress occurs independent of any one event, such as a divorce.”
17. What percent of those parties who you believe committed domestic violence may have had a personality disorder, as defined above? 56.1%
19. What percent of those complainants whose [domestic violence] allegations you seriously doubted may have had a personality disorder? 57.9%
24. What percent of those who you believe are “true” perpetrators of child sexual abuse appear to have a personality disorder as defined above? 84.6%
25. What percent of those who you believe make “knowingly false” reports of child sexual abuse appear to have a personality disorder? 81.3%
26. What percent of those who you believe make “false but honestly believed” reports of child sexual abuse appear to have a personality disorder? 52.7%
I used to think that disputes were about issues – that bigger issues drove bigger, more difficult conflicts. Wouldn’t a million dollar dispute be harder to resolve than a conflict over $5,000? Wouldn’t an argument over a small family inheritance be simpler to settle than the terms of an international business contract?
Let me give you an example of two hypothetical families going through a very similar dispute – divorce. (Many of the case examples in this course are taken from Court of Appeals cases, some come directly from real cases with only names and identifying information changed, and some are inspired by real cases but made up to demonstrate a point.)
Let’s call them the Smiths and the Greens. They are based on the types of cases commonly seen by family law attorneys and mediators. Suppose both families involve a businessman husband who makes $150,000 a year, a teacher wife who makes $50,000, two children, a family residence, a rental condo, and retirement investments worth half a million dollars. The parties themselves can choose whether to go to court or to settle their divorce completely out of court.
Mr. Smith calls a divorce mediator and says that he and his wife want to try to handle the divorce out of court. After meeting together for five or six sessions in the mediator’s office, they reach a complete agreement on all issues. He moves into the rental condo with plans to buy a house in a year or so, while she stays in the family residence and the children reside primarily with her, with very flexible visitation for Mr. Smith. He agrees to give her child and spousal support in the monthly amount of about $3,000, based on guidelines the court might consider given the differences in their incomes. Since she gets to keep the house, he gets more of the retirement investments. They each have an attorney review the Marital Settlement Agreement that the mediator prepared, resulting in some minor edits. Their divorce takes six months and costs them a total of about $4,000.
When they come in to sign the final divorce papers, Ms. Smith brings the children to the mediator’s office for a visitation exchange when they are done. They get out crayons and draw pictures while their parents sign the papers for their divorce in the other room. When the parents are done signing, there are a few tears and brief discussion of some visitation arrangements for an upcoming holiday. When they exit the office, the kids show both parents what they drew. Then they give Mom a kiss good-bye and leave with Dad. It’s not always like that, but it’s not uncommon.
Mr. Green calls a family law attorney for a consultation. He wants to mediate his divorce and use the attorney for outside consultation. But his wife won’t agree. She’s really angry and wants immediate payment of spousal support far above the guidelines. Within a week, she files for divorce and obtains a court restraining order against him (without his presence or knowledge) because of an incident two months prior. He apparently broke the lock to a shed behind the family residence to get some belongings when she wasn’t home. He was surprised to find that she had changed the locks.
He says he was never physically abusive with her and she never claims he was. He says that she was never afraid of him, but that she was frequently angry at him and the children, often over minor events or misunderstandings. She demands that the court require him to have supervised visitation with the children for just 2 hours a week, because he is a “violent” person, since he broke the lock to the shed. She gets a temporary order for supervised visitation. He retains the attorney to represent him in court.
Over the next two years, there are eight temporary hearings regarding various issues including the restraining order, parenting plan, and support. Finally, there is a full-day trial. Ms. Green’s second attorney (she fired the first because he wasn’t aggressive enough) presents evidence on multiple issues acquired through numerous subpoenas, depositions, professional evaluations of their parenting plan, and appraisals. At trial, his attorney argues that several of the issues they have contested for two years have been long-settled under the law and not worth disputing. Ms. Green makes several contradictory statements during cross-examination, and is easily angered over minor issues.
Finally, the court orders the restraining order terminated. Mr. Green gets regular visitation, although his ex-wife still yells at him when he picks up the kids. The retirement investments are split equally. Mr. Green is ordered to pay his ex-wife spousal support in the amount of $3,000 per month (about the same as Ms. Smith received by agreement). However, they have to sell the family residence. The legal fees for both sides of this two-year battle end up at about $80,000; ironically, the same amount the Greens receive as proceeds from the sale of their house.
What is the biggest difference between these two types of cases? They both are divorces, which are an emotionally stressful experience with often difficult communication. The incomes, assets, and parenting issues were the same. Yet the Greens’ case appeared complex, seeming to require the use of many legal procedures – deposition, subpoenas, hearings, and a trial. The Smith’s case appeared relatively simple, and cost significantly less – 5% – of what the Greens spent.
You can’t blame the difference on attorneys, as both couples sought the assistance of attorneys at some point. In fact, Ms. Green’s first attorney probably would have settled the case early on, with an agreement similar to the eventual outcome and a significant savings in attorney’s fees. It was Ms. Green’s decision to pursue a highly adversarial approach over two years. Her high conflict personality determined the direction of the entire case.
High Conflict Personalities stand out. Their emotions are often exaggerated. Their behavior is repeatedly inappropriate. Minor problems become major disputes. They persist long after others let go. There is an urgency and drama to their daily lives. And they always have someone to blame.
Some High Conflict Personalities are more difficult than others, but they tend to share a similar preoccupation with blame – a pattern of blame – that is embedded in their personalities. This preoccupation drives them constantly into one dispute after another, and enables them to avoid ever looking at themselves or changing their own behavior. The best way to explain this pattern is with an extreme, yet true example.
This high conflict case escalated over a period of several years. The husband, Dan Broderick, obtained a medical degree, but he also got a law degree and built a practice as a highly paid medical malpractice attorney. He and Elisabeth (“Betty”) Broderick had four children and a wealthy lifestyle in the La Jolla community of San Diego. When Betty found out that Dan was having an affair with his legal assistant Linda, she became angry – a common response.
However, she handled that anger in a manner that drew national attention. The following is compiled from news reports in the New York Times, 9/20/91, p. A8; San Diego Union, 10/23/90, p. B2; People Magazine, 10/21/91, p. 65-68; and San Diego Union-Tribune, 12/11/91, p. A10; and 9/15/99, p. B4.
After finding out about his affair, Betty burned Dan’s custom-made clothing in the backyard. She broke windows, spray-painted inside the house, and wrecked his bedroom. She spread cream pie all over his fancy sweaters. When he moved into his own home after the divorce, she drove her car into his front door.
When the divorce became final in August 1986, he received custody of their four children. Betty claimed that the system was stacked against her because Dan was so well-connected as an attorney. She complained that he harassed her with legal paperwork. She complained that the financial settlement was inappropriately low. Her anger remained strong even years after the divorce, despite being encouraged by those around her to get on with her life. One of her young sons told her that two years was long enough for her to be mad at his father.
You would think she was doing well after the divorce. She had a car, a home in La Jolla with an ocean view, and she was getting $16,000 per month in spousal support. Apparently, she bought a pistol in 1989 and even cleaned it in front of her sons, who were 10 and 13 at the time. She reportedly told them that she was going to use it to kill their father. It was around this time that Dan and Linda were preparing to get married.
After his wedding, Dan finally decided to let Betty have custody of their two sons in the hope it would bring some peace. However, during the first weekend that she had the boys, she reexamined their legal papers and came to believe that there were loopholes that would allow him to prevent her from having custody. She woke up early on November 5, 1989, and claims she felt she couldn’t go on.
She went to Dan and Linda’s house, opened the door with a key she took from one of her daughters, and confronted them in their bedroom. She says she intended to shoot herself in front of them, but apparently swung the gun around, shooting wildly. She was so agitated, she claimed, that she left the house without even realizing that she had killed them.
Two years later, at the time of trial, she considered herself the victim. Linda shouldn’t have allowed herself to get involved with a married man, she complained. And Dan shouldn’t have bullied her with a flood of legal papers. She had no remorse and said she wasn’t to blame for their deaths.
At first, many people felt sympathetic toward Betty. Her first trial ended with a hung jury because two jurors preferred manslaughter, believing she did not intend to kill Dan and his new wife. One of those jurors was especially sympathetic to Betty’s dramatic and tearful testimony – he said he was surprised that she didn’t kill him sooner, after how he treated her.
The second jury saw the case as much more about Betty and her own behavior. They didn’t accept her efforts to shift responsibility on to Dan. They believed that her problems were brought on by herself and that she distorted reality. She blamed her aggressive and destructive behavior on Dan. The second jury didn’t buy it. They saw her behavior as aberrant and wondered about her sanity, but determined that she knew what she was doing and made her own conscious decisions.
The prosecution and witnesses directly explained the problem as a person with a Borderline Personality Disorder who stalked her victim and premeditated his murder. Psychiatrists and psychologists testified for both sides. Even a defense psychologist said she got her only identity from her husband. One of the prosecution psychiatrists said that her hostility toward Dan would not have changed at all, even if she got everything she wanted in the divorce – including an increase to $25,000 per month in spousal support – because it was really about her drive to stay pathologically connected, not about the money.
It seemed as though she got her identity and attention from her husband – at first by being married to him and then fighting with him. After the fight appeared to be over, she couldn’t stand it. I recently attended a program on stalking presented by the Deputy District Attorney, Kerry Wells, who successfully prosecuted her. She said Betty still doesn’t believe she did anything wrong even 12 years later – a perception that fits with the pattern of a personality disorder.
These case examples (the Greens and the Brodericks) show that one High Conflict Personality can completely drive the direction of a legal dispute. You may have noticed that I did not indicate whether the husbands had High Conflict Personalities. From my experience, sometimes both parties to a dispute have High Conflict Personalities, but in many cases there is only one High Conflict Personality – the other party is fairly reasonable, simply trying to avoid the conflict or trying to get it under control. This is similar to the spouse of an alcoholic who tries to cover up, apologize for, and manage the alcoholic – but isn’t an alcoholic himself.
Another characteristic of these case examples is how self-sabotaging these personalities can be. Ms. Green lost the family residence to the parties’ attorneys’ fees because of her own decision to use a highly adversarial approach. Betty Broderick lost her freedom (she got a 35-year sentence) and lost her $16,000 a month spousal support. This is one of the most striking characteristics of High Conflict Personalities – their actions are so self-sabotaging and out of proportion with external events that they seem beyond comprehension. However, there is logic to their behavior if the personality patterns can be identified.
The importance of looking for the pattern in understanding personalities – to analyze past behavior and predict future problems – is demonstrated in the following case example decided by the California Supreme Court.
Eben Gossage graduated from law school in 1991 and passed the bar exam on his first try. However, when he applied to the California State Bar to become a practicing attorney, a difficulty arose with the final requirement of the process – the moral character determination. Apparently, he had legal problems in the past, which he attributed to an addiction to drugs and alcohol.
Specifically, when he was 20 in 1975, he killed his 19-year-old sister during an argument. He was convicted of voluntary manslaughter, and served two and one-half years in state prison. After he got out, he apparently turned his life around. He stopped using drugs and alcohol.
During law school many years later, he performed community service, volunteered with a battered women’s support group, and joined Amnesty International. After passing the bar, he assisted nonprofit groups, lobbied about the harmful effects of pollution on city residents, volunteered in local political campaigns, volunteered as a university math tutor, and helped drug-addicted youth prepare for their high school equivalency exams.
In 1996, the Bar Court held a hearing on his moral character, and numerous people testified on Mr. Gossage’s behalf. The Bar Court became convinced that he had sufficiently rehabilitated himself, and decided that he was qualified to practice law.
However, the California Supreme Court reviewed the case. They had concerns. The following quotes are from the Court’s decision in 2000:
“Gossage presented testimony [to the Bar Court] by 20 lay witnesses, most of whom he met after he was last released from prison and many of whom said they knew him well. They included his girlfriend and other personal friends, . . . college and law school professors, and prominent public officials . . . . The foregoing witnesses described Gossage as an honest person who had expressed remorse for killing his sister and for committing drug-related crimes. No one had seen Gossage under the influence of drugs or alcohol since he was last released from prison in 1983.
“Five mental health professionals interviewed Gossage shortly before the State Bar Court hearing. These individuals opined that Gossage had successfully overcome any substance abuse problem or personality disorder afflicting him in the pre-1983 period, when he killed his sister and committed other serious crimes. None saw any sign that Gossage presently suffered from a diagnosable mental disorder or psychopathological condition. However, the Committee’s witness, Dr. Feinberg, could not eliminate the possibility that Gossage’s failure to resolve the traffic citations during law school promptly was the product of a ‘residual’ inability or unwillingness to abide by societal rules. One of Gossage’s witnesses, Dr. Carfagni, similarly suggested that receiving four to six traffic tickets over a three- to five-year period might reveal the presence of an antisocial attitude or personality.” (Emphasis added) In Re Eben Gossage, On Admission (2000) 23 Cal. 4th 1080, 1092-93; 99 Cal. Rptr. 2d 130.
The California Supreme Court ultimately denied Gossage’s application. The Supreme Court was concerned that on his application for admission to the bar he mentioned only four of his 17 criminal convictions – which included forgeries, driving with a suspended license, failure to register his vehicle, several failures to appear in court for automobile violations, and failure to finish paying fines. The Supreme Court noted that many of these offenses occurred during the six-year period that included his law school education, from age 33 to 39, and that he “repeatedly violated state traffic laws and sustained several misdemeanor convictions for mishandling these matters in court.” Gossage, supra, at 1088.
Perhaps most importantly, the Supreme Court disagreed with the Bar Court’s approach:
“The majority examined each incident during this period, but did so in isolation, finding excuses or mitigation in each case. However, the majority again omitted and misstated relevant facts, and it never confronted the ominous implications of the pattern of misconduct committed while Gossage was preparing to be a lawyer...” (Italics are the Supreme Court’s) Gossage, supra, at 1094.
Instead, the Supreme Court agreed with the dissenting opinion of the Bar Court panel:
“The dissent observed that when his more recent misconduct is viewed in light of his prior crimes, there is no meaningful period in Gossage’s adult life when he has not incurred convictions and otherwise shirked legal responsibilities. The dissent perceived a dangerous tendency in Gossage to excuse his misdeeds, including those committed after he entered law school, when he should have been more sensitive to the rule of law.” (Emphasis added) Id. at 1094-95.
The Bar Court made a common mistake by looking only at Mr. Gossage’s many rehabilitated behaviors and interpreting them as indicating a change in his moral character. The Supreme Court, however, looked at the whole picture of Mr. Gossage’s conduct, which revealed his ongoing antisocial pattern of breaking societal rules.
As the reader of these materials is a mental health professional, this section will be a brief overview of how personality disorders and maladaptive traits appear in legal disputes. The fundamental characteristics of personality disorders lead many into high conflict disputes:
Paraphrased from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Washington, DC, American Psychiatric Association, 1994.
From my experience, observations, and legal research, the parties most often involved in High Conflict disputes appear to come from Cluster B Personality Disorders: Borderline, Narcissistic, Antisocial, and Histrionic.
Persons with Cluster B personality disorders appear to have characteristics that draw them into intense, ongoing conflicts on a regular basis – much more than the other clusters. The personality researcher, Theodore Millon, identifies most of this group as “Interpersonally Imbalanced” personalities. (He puts Borderlines in another category and includes Dependents in his Interpersonally Imbalanced group, but I find that Cluster B accurately identifies the four High Conflict Personalities I most often see driving legal disputes.)
In contrast, Cluster A includes Paranoid (suspicious), Schizoid (asocial), and Schizotypal (eccentric) personality disorders. People with these personality types are much less likely to tolerate intense, ongoing conflicts because of their personality types.
Cluster C includes Avoidant (withdrawing), Dependent (submissive), and Obsessive-Compulsive (conforming) personality disorders. Those in Cluster C have generally adopted methods of avoiding conflicts, and do not seek to prolong disputes. However, I have seen Cluster C personalities frequently involved in disputes aggressively promoted by Cluster B personalities. They often seem to get into relationships with Cluster Bs as the more passive partner – one who tolerates ongoing abuse because of their withdrawing, submissive, or conforming Cluster C personality style.
Eben Gossage was identified as possibly having an Antisocial Personality Disorder. He was able to collect at least 20 committed witnesses on his behalf. Did they all know about his ongoing antisocial behavior – continued violations of the law? Or were they swept up in the emotions of this man who had worked so hard to overcome his past? Whatever the reason, his drive to become an attorney (at the same time as he was continually breaking minor laws) kept a dispute going in the courts for almost a decade and ended up before the California Supreme Court.
Betty Broderick was identified as possibly having a Borderline Personality Disorder. At first, she was able to gather a lot of sympathy after she killed Dan Broderick because of her emotional drive. She was a Persuasive Blamer for a long time. It took two juries to convict her of murder, several years after it occurred. While she is no longer that persuasive, she still believes that Dan and Linda are to blame for their own murders.
Gloria Green spent two years getting the family court judge to seriously consider – and mostly agree with – her numerous allegations against her husband. It was not until the final trial that most of her blaming claims were fully analyzed and determined to be unfounded.
Mental health researchers have studied cognitive distortions for many years. Common cognitive distortions that appear in high conflict cases include:
Since the cognitive distortions of those with personality disorders generally cause them to interpret events as all external, they desperately seek something or someone else to blame. It is a psychological process of diverting attention from one’s own unacceptable behavior onto the behavior of another. It appears to be a sincere, but misplaced, effort to change the cause of their distress and problems.
I call persons with these personality disorders or traits in legal disputes, “Persuasive Blamers.” They convince others to see things through their cognitive distortions, especially in the courts and other dispute resolution settings. They help generate an Enduring Pattern of Blame, with identifiable characteristics in many disputes.
Not all of those with Cluster B personality disorders or traits appear to be Persuasive Blamers. Some of those in therapy are willing to look somewhat at their own behavior and are less likely to focus blame on others. Some in this Cluster are also unpersuasive with their dramatic emotions and cognitive distortions. However, some of those with Cluster B personality disorders or traits become High Conflict Personalities because of their Cluster B characteristics – high intensity emotions, personalization, projection, and so forth. There appears to be a consistent pattern of those with these High Conflict Personalities (“HCPs”) when they engage in legal disputes.
In most high conflict cases, the Target is someone with whom the HCP has or had a close relationship. This is often a spouse, former spouse, neighbor, coworker, business partner, or professional – especially one with whom the HCP had an emotionally close relationship, such as a doctor, lawyer, minister or priest. Any of these persons can become Targets because of some misunderstanding – such as a phone call that was not returned – which triggered rejection feelings which “deserved” an attack.
In divorce cases, the other spouse is an easy Target to blame for all of the problems in the marriage – and for the divorce. HCPs have difficulty tolerating the idea that these problems could be partially their fault. Society assumes that marriages and divorces are partially the responsibility of both parties, except in cases of extremely bad behavior by one spouse. Therefore, High Conflict Personalities blame their former spouses for extremely bad behavior.
A wife becomes an unfit mother, a slut, a slouch, a controlling witch, and so forth. A husband becomes a spousal abuser, a child abuser, a deadbeat Dad, or a child molester. The HCP’s cognitive distortions lead them to believe their former spouse is capable of the behavior of a monster – because of the monstrous bad feelings of being rejected, or some other distortion. In some cases, the HCP knows that the allegations are not true, but feels driven to make them by his cognitive distortions. “She was always an unfit mother and the children don’t feel safe with her,” he says, after she spent 5 years as the primary parent without incident. He feels he has to dominate her and the children to feel in control in the divorce. These are the extremes of behavior that fit the extremes of emotions the HCP feels.
While the average person spends some of their emotional energy on reflection and self-change, HCPs appear to put all of their emotions into attacking their Target – to try to get them to change, to stop doing something, to compensate them for their troubles, or simply to divert attention from their own bad behavior. Not surprisingly, Targets don’t respond positively to these emotional demands. Therefore, the HCP starts pursuing others to help blame the Target. Essentially, they are seeking family, friends, and/or professionals who will help advocate for their cognitive distortions.
HCPs are not seeking help for problem-solving ideas and general support. When High Conflict Personalities are in a conflict, there is nothing to discuss or negotiate. Problem-solving ideas are irrelevant. They are seeking Advocates of Blame. When most people try to give them problem-solving ideas, it is not what they want. It makes them feel disbelieved or partly responsible. Since the HCP cannot tolerate the idea that they might be part of the problem, they will keep searching until they find Advocates who agree with them that they are totally blameless. In order to be totally blameless, they must get Advocates to agree that there is a Target who is totally blameworthy.
Such Advocates can be family members, friends, or professionals. Attorneys and mental health professionals are particularly thought of as attractive Advocates because attorneys “have to represent you” and therapists “have to like you.” At least, that’s how HCPs seem to think – and this appears to be the general public perception.
When potential Advocates don’t believe the HCP (which is very common initially), then the HCP escalates her emotions even higher: louder voice, higher pitch, she gets in the listener’s face, she blames the listener for not caring, and comes up with ever more dramatic allegations against her Target. She might become more manipulative – behaving seductively, tearful, helpless, and offering rewards. Or she might give up and look elsewhere for another Advocate. The goal of releasing their internal distress gives HCPs enormous energy with which to engage in an ever-escalating, high conflict dispute.
Customer Service Representatives have stories about HCPs who call with complaints about the oddest things. Then their emotions escalate. It would be laughable, except that the way the representative handles the call can make the difference between whether the company is sued or not. Even though the lawsuit may seem frivolous to the company, it may feel deadly serious for the HCP. Even though the HCP may lose the lawsuit, the time and money spent on the case can be enormous. This is an area where training by mental health consultants is invaluable in preventing potential lawsuits for businesses, large and small.
While most potential Advocates may feel empathy for the emotional distress expressed by the HCP, they are not persuaded by the real facts of the dispute. It will take more persuasive facts to win them over. Thus, those with High Conflict Personalities begin to generate distorted information that fits how they feel. Their feelings create their facts. While mental health professionals often recognize this, most businesspersons and legal professionals truly do not understand. Thus, they become absorbed in trying to determine who is lying, or investigating fictional information for days, months, or years in the structured legal process.
Much of today’s legal disputes are about what I call Emotional Facts – emotionally-generated false information accepted as true and appearing to require emergency legal action.
Researchers of false allegations of sexual abuse have studied “Stereotype Induction,” by which young children are given a false impression of a man. Then they have observed how the children spontaneously generate negative “facts” about that man that grow and grow – but were never true. (See Ceci & Bruck, Jeopardy in the Courtroom, Chapter 10.)
If persuaded of the Emotional Facts against the Target, the Advocate will feel a sense of urgency and feel compelled to do things on behalf of the HCP. The Advocate will persuade new Advocates. They will persuade each other. Advocates will start generating new Emotional Facts themselves, and the case will escalate, much like rumors that demand urgent action.
Of course, the Target generally has two choices: Give in to the mounting attack – which many victims of domestic violence and small businesses do – or fight back and also obtain Advocates. Interestingly, many Targets are not HCPs themselves and do not have practical experience at the adversarial approach to problem-solving. They are not by nature highly persuasive. They generally are trusting – sometimes over-trusting – of others, and therefore believe that others will see the truth without the need for persuasion. The Target may decide to involve a dispute resolver – mediator, ombudsman, arbitrator, court – or may decide to wait and see if the HCP calms down or goes away.
Inevitably, many HCP disputes escalate to involve a dispute resolver. This is often the court. As the cases in the following chapters demonstrate, this can be either because the HCP brings the case to court as a plaintiff or the Target takes the HCP to court as a defendant.
Some high conflict disputes resolve in mediation, if the mediator is able to handle the mediation in a way that satisfies the High Conflict Personality. This may involve some emotional or financial concessions that are acceptable to the Target. However, the HCP may be unwilling to negotiate meaningfully regardless of what the mediator does. If the Target is an insurance company or other large organization, it may have a policy of not settling cases with little or no hard evidence. So, the case goes to trial.
In court cases, those with personality disorders or traits start out very convincingly about their cognitive distortions. They are usually much more aggressive than their Targets. They know right away that this is an adversarial process. Some Targets are shocked by the emotional intensity and Emotional Facts generated by their former spouse, neighbor, coworker, or client. They didn’t know this adversarial side of the HCP because they were previously in a collaborative relationship. Other Targets know exactly what to expect because of previous blaming.
Targets are generally at a disadvantage in court. They trust the court to be a finder of fact; they know the facts are in their favor, so they are confident they will prevail. They start out trying not to escalate the dispute, and generally take a problem-solving and settlement-oriented approach. They behave respectfully in court and defer to the all-knowing authorities.
Unfortunately, the authorities aren’t really all-knowing and can only base their decisions on the information the parties provide. The court system – an adversarial system – has many procedures that control the information presented. In many cases, this works very well. However, in the case of High Conflict Personalities, the process may be easily manipulated if the professionals and decision-makers are not aware of cognitive distortions and emotional persuasion.
Few legal professionals understand the attraction of those with personality disorders or traits to the legal process. Yet a comparison of characteristics shows a perfect fit, which may explain why they increasingly show up in court as High Conflict Personalities.
Characteristics of HCPs
Characteristics of Court Process
Lifetime Preoccupation: Blaming Others
Purpose: Deciding who is to blame, who’s guilty
Avoid taking responsibility
Court will hold someone else responsible
Guilty or not guilty are usually the choices
Seek attention and sympathy
One can be center of much attention
Aggressively seek allies
Gather and bring many advocates to court
Speak in dramatic and emotional extremes
Argue or testify in dramatic and emotional extremes
Focus intensely on other’s past behaviors
Hear or give testimony on other’s past behaviors
Punish those guilty of “harming” you
Court is the most powerful place to impose punishment in our society
Try to get others to solve your problems
Many professionals will work hard to solve your problems
Its okay to lie if you feel desperate
In reality, the court rarely acknowledges or punishes lying (perjury)
Because the thought structure of HCPs and the adversarial court process are such a perfect fit, HCPs are often effective at making innocent people look “guilty,” while at the same time they are skilled at looking “innocent” themselves. With their desperate charm and aggressive drive, they often succeed.
Diagnosis and treatment are the fundamentals of the health care and mental health professions. An accurate diagnosis of the problem is essential to provide the proper treatment. However, in court the process is based on persuasion, not diagnosis.
A good diagnostic process considers several theories of a case, with the burden of making an accurate assessment on the therapist or investigator, who must know all relevant diagnostic criteria and who must test the evidence against each plausible theory. In court, the process of persuasion is centered on proving or disproving just one theory of the case. The judge or jury is the decision-maker, not an investigator. The burden of gathering evidence, knowing all relevant theories, and presenting it is on the parties (and their attorneys). The judge or jury must decide who is most persuasive – usually with many restrictions on the information they are allowed to see and consider.
For decades, social scientists have studied two basic paths to persuasion, called the central route of persuasion and the peripheral route of persuasion. (Lewicki, 1994, pp. 205-215, citing research of Chaiken, 1987, and Petty and Cacioppo, 1986) Each route affects our processing of information and judgment in a different manner.
CENTRAL ROUTE OF PERSUASION:
PERIPHERAL ROUTE OF PERSUASION:
Attractiveness of the messenger
Aggressiveness of the messenger
Number of arguments made
Shorter Sentences and Simpler Messages
Use of Distractions
Relationship to the Listener
Social Role and Group Identification
Interestingly, those with personality disorders or maladaptive personality traits tend to be those who rely more heavily on peripheral persuasion in daily life. This often becomes their primary problem-solving method, as they attempt to influence others to take action for them. Those with personality disorders often have a loose grip on the facts, so they rely more easily on emotions to persuade people. Unfortunately, many Persuasive Blamers have developed highly effective skills of short-term emotional persuasion, including charm, heightened emotions, and the ability to persuade others that they are victims – even when they are the perpetrators.
In court – especially with interpersonal disputes – the factual information is often skimpy and directly in conflict. The primary source of evidence is what each party says about the other: “He said, she said.” Important information may be excluded by legal objections, and the decision-makers usually do not see the parties interact – the most useful information about interpersonal disputes, aggressive behavior, and personalities.
There are significant rewards for winning in court (getting money, staying out of jail). Consequences for lying are rare. Persuading the court to adopt one’s own point of view (no matter how distorted it may be) becomes the primary goal.
In the absence or conflict of factual information, the peripheral route can dominate decision-making. Jury research shows that parties who appear more confident and attractive are more persuasive. Additional research on jury verdicts shows that attorneys who use an aggressive style are perceived as more effective, although the assertive style was equally successful in obtaining favorable verdicts. (Reike & Stutman, p.124, citing research by Sigal, Braden-MaGuire, Hayden, and Mosley, 1985)
A more emotionally aggressive party (or his or her attorney) may be more successful in capturing the attention and sympathies of the judge and jury. The first side to cry victim may be able to trigger suspicion and anger toward the other side. A more emotionally reasonable or passive party (many a true victim) can appear less persuasive – even though more truthful and flexible in out-of-court problem-solving. Ironically, studies show that courts are more accurate when considering written information and documents only – screening out visual and verbal peripheral distractions. (Reike & Stutman, p. 125)
We have all witnessed in the news and courtroom dramas the fact that a persuasive, aggressive person can “win” in court even though the facts of the case clearly indicate that they should not. Ironically, it appears that the Courts of Appeals are often the ones to more accurately and objectively understand these cases, while trial courts seem to be more affected by peripheral persuasion. Perhaps this explains why the Bar Court in the Gossage case seemed so forgiving of so many misdeeds, while the Supreme Court seems to have taken a more objective approach and observed the enduring pattern.
The Central Route of Persuasion would appear to be the proper focus for litigation. Interestingly, the adversarial court process makes many efforts to screen out peripheral persuasion. “Evidentiary Objections” are built in to safeguard against the intrusion of inappropriate, often highly emotional, information. Objections can be used as a shield against unreasonable and unfair information that is unreliable. They can also be used to protect citizens against evidence obtained improperly by an overreaching government (improper searches, seizures, and intrusions into citizen’s homes, cars) even if it suggests guilt.
However, objections can also interfere with the Central Route of persuasion. There was a clever commentary on objections in the movie, A Civil Action, in which Robert Duvall teaches law students how to use objections to repeatedly interrupt the decision-maker’s train of thought when the facts were going against his client.
From my observations, most high conflict cases are not resolved until the Central Route of factual information finally prevails over the Peripheral Route of emotions and dramatics. Because of court procedures, this often takes quite a long time. It may not be until the second retrial (Betty Broderick case), or the Civil Trial (O. J. Simpson case), or an appeal (Gossage case), that the facts prevail, the overall patterns become clear, and justice is somewhat done. Of course, many high conflict cases simply end when the Targets give up and decide to do something else with their lives. For the High Conflict Personality, dramatic interpersonal conflict is his life, so giving up is much less likely.
HCPs in court cases present a triple threat: Cognitive Distortions plus an emphasis on Peripheral Persuasion plus court limitations on Central Route persuasion.
The resulting escalation of emotions and legal activity can involve many others, and a great deal of time and money. This suggests an opportunity for mental health professionals to educate courts, businesses, governmental agencies, and families on the misunderstood dynamics of High Conflict Personalities.
Without understanding High Conflict Personalities and their Enduring Pattern of Blame, we will face ever-escalating costs as their disputes escalate into high conflict. However, with some basic understanding, empathy, and the application of certain skills, High Conflict Personalities can be identified, their energies redirected, and their disputes resolved. The next four chapters describe in detail how to identify the characteristics of the four most common High Conflict Personalities (Cluster B Persuasive Blamers), with several case examples of each.
Thus, HCPs avoid accountability and do not change their own behavior. The real problems are unaddressed and conflicts endlessly escalate.
Approximately 2% of the adult population is reported to have Borderline Personality Disorder (BPD), but persons with BPD appear much more frequently in mental health settings – about 10% of outpatients and 20% of inpatients. (American Psychiatric Association, 1994) have BPD. In my experience, those with Borderline Personalities (referred to throughout as a “BP”) are the most frequent problems to appear in High Conflict cases. When they have strong enough feelings of being abandoned, they often go to court, either to punish or to feel in control. On the other hand, because of their tendency to act impulsively, they may be brought to court as defendants after they lose control and hurt others.
Studies indicate that approximately 75% of those with BPD are women (Linehan, 1993, p. 4). However, BPD is also commonly identified in men who commit domestic violence (Dutton, 1998, pp. 7). While both male and female BPs predominantly identify themselves as victims, their own intense anger and impulsive acts frequently get them into civil and criminal cases as defendants charged with everything from shoplifting to murder.
Conflicts – from mild to severe – between those with BPD and their advocates are to be expected. However, until you get to know the BP or observe her in a crisis situation, she often appears normal – and even appealing – on the surface. Their problems most frequently occur in intimate relationships and there may be a split between frequently angry private behavior and a friendly “public persona” (Dutton, pp. 10 & 70).
While mental health professionals are perhaps most familiar with BP of all the personality disorders, a brief look at the DSM-IV criteria is helpful:
“A pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
Reprinted with permission from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Copyright 1994 American Psychiatric Association.
When interacting with BPS, it is important to work with them on their cognitive extremes, rather than to criticize them. One of the most effective treatment approaches is Dialectical Behavioral Therapy developed by Marsha M. Linehan (Linehan, 1993). She encourages BPS to recognize their ability to change and to accept themselves as they are. Rather than blaming the BP for faulty thinking, she teaches them to accept that they (and the world) are not perfect, and at the same time, that they learn new skills. This acceptance of the dialectics (opposites) as coexisting in the real world has had research-confirmed success (Linehan, 1993). The Advocate (attorney, mediator, therapist, family member) working with a BP in a legal dispute can validate the person rather than criticizing the behavior, and then focus them on alternative behaviors or the next task in the case.
For example, “I can understand that you were just trying to protect your son from perceived dangers during the visitation exchange last weekend [when the BP started screaming at the other parent]. I can see that you really care about your children. I can also see that there are some other more effective things you can do in the future. Let’s talk about them when we meet tomorrow.”
In 2000, a Court of Appeals decision in a stalking case described behavior that might meet some of the criteria for BPD – especially impulsivity and anger. However, this case never discusses the issue of a personality disorder. In legal dispute resolution, the mental health professional may never need to formulate a formal diagnosis. Instead, you can develop a “Working Theory” of personality patterns to try to understand Mr. Borrelli’s actions. There is no single answer in developing a Working Theory of a problem personality in a legal dispute, but developing a possible explanation for the person’s behavior will help you decide what methods to use in handling their personality.
Annette Borrelli separated from David Borrelli in 1995, after she obtained a restraining order against him. One day, a few months later, she was at her parent’s house and he showed up unexpectedly early to pick up the children.
“While Ms. Borrelli was putting the children in appellant’s [Mr. B’s] car, he was threatening her and telling her that he was going to kill both her and her parents. Before she could finish strapping the children in, [he] began backing up his truck as though he was going to run over her feet. He then left with the children.
. . . .
“A few hours later, [Mr. Borrelli] arrived unannounced at Ms. Borrelli’s Turlock home. [He] was very angry because the children had fallen asleep and he had nowhere to take them. He stomped on her foot, kicked her, and screamed obscenities at her. He then took off with the children still in the car.
. . . .
“[A few months later he contacted her] and complained that the clothes she had packed for the children were inappropriate. He wanted new clothes. So, Ms. Borrelli hurried home and packed some clothes. She had just sat down in her car to retrieve something when she felt it move and realized that appellant had rear-ended her. He hit her car hard enough to cause Ms. Borrelli’s neck to go back ‘and cause a good feeling in it.’
. . . .
“One of the times he threatened to kill her, he said he would blow her head off with a gun. She was very frightened and became a nervous wreck each time she was threatened. She knew [he] owned a couple of firearms and she had seen ammunition around the house during the time they were together. He told her that he kept one of his guns in his car.
“To her knowledge, the only other person [he] had ever threatened to kill was himself. Ms. Borrelli had contacted the police more than once when this occurred since [Mr. Borrelli] seemed likely to carry out the threat.
“On May 1, 1996, she moved to another location and did not give [him] her new address. From that point on, she and [Mr. Borrelli] exchanged the children at the Turlock Police Department.
On May 7, 1996, [he] showed up at Ms. Borrelli’s place of employment. He barged into her office, called her several names, and blamed her for his inability to have surgery on his arm. She did not know why he was blaming her. As far as she knew, [he] was working with some type of program that was going to pay the costs of the surgery.
. . . .
“[On December 22, 1996, sometime after 10:00 p.m., two men noticed a fire across the street.] The two men ran over there to investigate and found a burning car smashed into a building. They contacted [Mr. Borrelli], who was the only person nearby, and asked if he knew what happened. [He] said he did, as it was his car. They asked [Mr. Borrelli] if he had lost control of the car. [He] said no, he was making a statement to his girlfriend [sic] who worked in the building. [He] left before the firefighters arrived on the scene.” (Emphasis added) People v. Borrelli (2000) 77 Cal. App. 4th 703, 708-710; 91 Cal. Rptr. 2d 851, 854-855.
Mr. Borrelli was tried and convicted for arson and stalking. At trial, he tried to explain what he did on the night of December 22, 1996:
“He said he had been drinking and went to Mervyn’s to do some Christmas shopping. He got upset when he discovered he did not have enough money to pay for his children’s presents. He decided that, since he could not get the money his wife owed him [in the coming divorce settlement], he might as well give her the car too, particularly since it was having a lot of mechanical problems.
“So, he drove it through the front doors of his wife’s workplace. He then got out of the car (which he left running) and sat on the curb 25 yards away to wait for the police.” Borrelli, at 712; 856.
Photographs indicated that he then set the car on fire, although he denied it. Since he was not challenging his arson conviction on appeal, the appeals court did not deal further with that subject. What the appeal was about, since he had been convicted with overwhelming evidence of arson and stalking?
“Appellant contends [the stalking statute] is unconstitutional because it infringes on the free speech rights guaranteed under the First Amendment to the United States Constitution and article I, section 2 of the California Constitution.” Borrelli, at 712-713; 857.
Mr. Borrelli used the judicial system (and put Ms. Borrelli through the Appeals Court process for several years) for the following claims:
“That the statute kept people from expressing their feelings and ideas, under circumstances where no one will get hurt.” Id at 713; 857.
“[and] that the statue violates his due process rights because it forbids the doing of an act in such vague and overbroad terms that persons of ordinary intellect must speculate as to the meaning of ‘safety’.’’ Id at 717; 860.
The Court of Appeals flatly rejected all of these claims with a brief analysis of constitutional law. From Annette Borrelli’s first restraining order to the end of the case in the Court of Appeals, this case was in the courts for five years. By the way, in case you’re wondering, the sentence Mr. Borrelli was appealing for these crimes was three years of probation. Apparently, he could not let go until the Court of Appeals ended his case.
It is surprising how often a BP will engage in a behavior that has a sabotaging effect on his or her own life – and on the legal case – but not recognize its effect. In a divorce, the BP may “accidentally” sleep with the party she or he is divorcing, or violate the restraining order you worked hard to obtain on her or his behalf. In a criminal case, the BP may make a “veiled” threat of violence, but deny it could have meant anything. In a civil case, the BP may “forget” to accomplish an important task or appointment. Mr. Borrelli felt that his constitutional rights of expression were violated, yet it was his own violent actions for which he was convicted.
It is hard to predict self-sabotaging behaviors, as the BP is usually not consciously aware of them. Yet the potential for self-sabotage is an important factor to be aware of in working with BPS Impulsivity combined with an extreme lack of insight into their own behavior are key reasons their distress and social impairment are so enduring – thus the diagnosis of BPD.
A good example of a Borderline’s self-sabotage is in re Kristin H., a case in which a mother with a diagnosed Borderline Personality Disorder lost her parental rights because of extreme neglect and endangerment of her young daughter, Kristin.
“Dr. Sazima told the social worker that the mother suffered from borderline personality disorder, which was currently acute. She was not manic or psychotic but she did not show good judgment, particularly when she used drugs or alcohol.
“The mother contends that these hearsay statements by her parents and her two doctors do not support a finding of mental illness. We disagree. It is well settled that hearsay evidence contained in the social worker’s report is admissible. Moreover, there was additional evidence from Dr. Seeman, who evaluated the mother approximately six months after the incident of September 20, 1994. He found her to be a ‘very troubled woman’ and diagnosed her as having a generalized anxiety disorder and a ‘high profile’ of personality disorder.
“Dr. Seeman concluded that without treatment the mother’s care of her child ‘might be problematic’ and that her potential for impulsive and neglectful behavior ‘might be a hazard.’
“Her parents told the social worker that ‘the mother needs her medication and can’t stay level without [it].’ Dr. Chamberlain stated that the Zoloft ‘definitely helps.’
“The risk of harm to Kristin is evident in that the mother had apparently stopped taking her medication shortly before the incident on September 20, 1994, when she succumbed to a severe anxiety attack, ingested illegal drugs, and neglected to care for her daughter. The mother did not feel she needed medication, preferring instead to rely on her ‘inner strength.’”(Emphases added) In re Kristin H. (1996) 46 Cal. App. 4th 1635, 1651-53, 54 Cal. Rptr. 2d 722, 731.
Apparently, all that the mother had to do was stay on her medication. Yet she refused to do this, even though she risked forever losing her rights to parent her child. She sabotaged herself in the simplest way, and then fought very hard to avoid the consequences by opposing her own parents and her own doctors up to the Court of Appeals. Could she avoid losing her child?
“[T]he mother has attempted suicide on at least 3 occasions, and the minor reports seeing the mother lying on the floor on several occasions.
. . . .
“As to lying on the floor, she explained that this is where she does her recommended back exercises.
“The mother’s most recent suicide attempt in June of 1994 clearly posed a risk of harm to Kristin, who was in her mother’s care when the mother took an overdose of her prescription drug Xanax and had to be rushed to the hospital. The mother downplays this incident, explaining that this was a stressful time, and that she was just trying to get some sleep.
. . . .
“She would not regularly take her medications, which could have been helpful in stabilizing her mood swings, and she refused to acknowledge that her problems could be internal rather than external. [Emphases added]
“We affirm the order...” Id. at 1653-54.
Kristin’s mother lost her parental rights. She fit many of the criteria for BPD, including her impulsive nature and mood swings. Unfortunately, she was unable to face these problems and deal with them through the use of medication, which in her case had been very helpful. Although most BPS do not have such severe problems and severe consequences, this inability of the mother to see the self-sabotaging nature of her own behavior is typical of those with BPD.
Given that BPS have such difficulty with relationships, it is not surprising that they also have a love-hate relationship with their attorneys, mediators, and therapists. They are particularly vocal about how they have been harmed by previous professionals, against whom they may have a lawsuit for malpractice by the time they come to you. However, although this does not mean they have been wronged, it should serve as a warning sign to the next practitioner to dot all the i’s and cross all the t’s.
Kristin H.’s mother is a good example of a Borderline in conflict with her own parents and doctors. It sounds like they all tried to help her, but she was unwilling to acknowledge any problems, and therefore blamed them rather than using them for support.
There will sometimes be pressure on the professional to bend the usual boundaries with BP clients in an effort to soothe and reduce their emotional intensity. Be careful. Remember, they are frequently in some kind of crisis – often triggered by their own actions, but not consciously. Some professionals let themselves be seduced in one way or another by BPS For example, one attorney spent numerous unpaid hours helping a highly emotional new client find a new apartment after she had been evicted for various reasons – possibly related to the client’s own behavior. This can appear on the surface like a generous act for a needy client, or this can be just the beginning of a high-demand, low-pay relationship for years to come.
Since the BP raises expectations extremely high, when the devaluation comes, the professional will be hated even more so – and possibly sued for malpractice. It is best to have firm boundaries in advance, so that emotional pressure will not bend them. When in doubt, consult with another professional to evaluate your own judgment before making unusual commitments.
The causes of Borderline Personality Disorder are not clear. However, current theories emphasize two components – biology and early childhood environment. Studies have found a greater incidence of histrionic, antisocial, and borderline personality disorders among the first-degree relatives of BPS Whether these are caused by genetic links or social factors is unknown at this time. However, some research indicates that those with BPD may have some biological differences from other people, especially in the brain’s regulation of emotions (Linehan, 1993).
A chaotic early family life is often cited as a factor in the development of BPD. One major personality researcher, Theodore Millon, suggests that the increase in BPS in society is a result of the increase in chaotic families in recent years (Millon, 1987, cited in Linehan, 1993). Another author points out that a family may have been highly dysfunctional and disruptive to the child’s development yet looked normal from the outside (Ford, 1996). Marsha Linehan describes the dynamics of “invalidating environments” as a likely cause, especially common in families with substance abuse and child abuse (Linehan, 1993). The child does not learn to tolerate distress and form realistic expectations. Further, these families tend to reinforce extremes of emotion and behavior, while ignoring the moderate emotions and behaviors necessary for a successful adult life.
Studies show that about three-quarters of BPD women were sexually abused as children or suffered childhood physical abuse (Linehan, 1993). Yet, the majority of adults who were sexually and/or physically abused as children do not become BPS While the development of the disorder is well under way in early childhood, the diagnostic criteria of the DSM-IV generally discourages the diagnosis of personality disorders until age 18. It is possible that with corrective emotional and behavioral experiences, a person could overcome the diagnosis of the disorder and only have occasional BPD traits in his adult life.
The most frequently used treatment to date appears to be long-term individual psychotherapy. However, the most often researched therapies have used cognitive and behavioral approaches, which are now being used in short-term individual therapy. Cognitive Therapy of personality disorders uses successful techniques initially used for depression and anxiety over the past 20 years by a significant number of therapists (Beck, 1990). The Dialectical Behavioral Treatment approach (DBT) developed by Marsha Linehan has been well-researched as effective. It includes skills training for self-regulation of emotions and behavior, self-acceptance, and tolerance for the coexistence of opposites (such as being angry at someone and still loving them, or making mistakes and still being a good person) (Linehan, 1993). Medications have been largely ineffective at treating personality disorders, although many BPS have had other problems, such as depression and anxiety, alleviated with medications. Surprisingly, many therapists have observed that one of the most helpful treatments for some of their BPS has been Alcoholics Anonymous and similar groups. Apparently, the structure and ready availability of these group meetings can help the BP handle fears of abandonment as well as help them regulate her emotions on a daily basis.
It is not uncommon for one professional (attorney, therapist, mediator) to help the BP deal with a dispute against another former professional, then to become a Target himself when the Borderline is disappointed in the outcome.
With these patterns in mind, Advocates and Dispute Resolvers need to be especially careful about keeping a balanced relationship that does not reinforce extreme expectations or extreme blame against other Targets. Being modest and matter-of-fact are helpful approaches to preventing the idealization, which always leads to devaluation – and possibly, becoming the next Target.
Likewise, it is helpful to avoid responding to BPS with direct criticism, strong anger, ignoring them, or abruptly terminating relationships with them. All of these methods trigger their Fear of Abandonment and the High Conflict that follows. Ironically, out of frustration, Advocates and Dispute Resolvers frequently use these methods and escalate disputes against themselves that they could have avoided. Misunderstanding and mistreating BPS may be one of the most common reasons that attorneys and therapists are sued for malpractice.
It is not uncommon for courts to lecture and criticize these clients for their self-sabotaging behavior, which may inadvertently escalate the conflict. This approach often increases the likelihood that BPS will be back in court again and again, because they are driven to prove themselves “valid” to avoid feeling abandoned by the court.
Instead, key methods for helping Borderline clients in legal disputes include respectful listening, moderate reassurance, realistic expectations, remaining focused on necessary tasks, and avoiding overreacting to the BP’s mood swings. These skills and others are discussed in depth in Part II of these course materials. By understanding these dynamics and learning techniques for handling these clients, you can avoid unnecessary escalation of the conflict, reduce the BP’s feelings of distress, and reduce your own stress as well.
Mental health professionals estimate that only 1% of the general population has a Narcissistic Personality Disorder (NPD), although up to 16% may be present in mental health settings. (American Psychiatric Association, 1994) After handling a thousand disputes, I believe that those with Narcissistic Personalities (NPs) are present in a large number of high conflict cases. In general, Narcissistic traits are harder to work with than Borderline traits, for reasons I will describe below.
From time to time, I am selected to handle a business dispute as a Superior Court Mediator. One such case involved two small high-tech companies in a bitter conflict over a key employee, who left one company and went to the other. I have altered the names and facts to protect confidentiality.
Mr. Theodore, CEO of TedTronics, flew in for the mediation from Seattle to San Diego and arrived with his attorney well before the scheduled mediation was to begin. He had filed a lawsuit for $200,000 against MannTronics for fraud, patent violations, unfair competition, and so forth, and the judge had referred the case to mediation before a trial date could be set.
The attorney for MannTronics, the defendant San Diego firm, arrived on time and assured us that Mr. Mann, the head of the firm, would arrive soon. By twenty minutes after the hour, Mr. Mann had not arrived and Mr. Theodore was extremely insulted. “I flew in for this mediation and my time is extremely valuable. How dare Mr. Mann make me wait like this.”
I decided to start the mediation with those present. I focused on explaining the mediation process and offered to answer any questions about mediation while we were waiting.
Mr. Theodore wanted to know all about my background as a social worker. “What does a social worker know about business, anyway?” he challenged. I explained that I had successfully handled many business mediations because my background provided me with training and experience in helping people communicate and solve problems together. As the mediator, I relied on his knowledge of the issues at hand to construct a workable solution to the problems that had arisen. I also reminded him that I had been selected by the parties from a panel of mediators to handle their dispute.
“Yes, I agreed to use you, because I didn’t know anyone from the list of choices and the other side thought it would help that you were a social worker. But what do you know about business matters? Inventory? Budgets? Personnel problems like the one we’re here about?”
His tone was very condescending. The angrier he felt about Mr. Mann’s lateness, the more demeaning he became toward me. I could feel myself beginning to resent his belittling manner. Then I reminded myself to develop a Working Theory of his personality. I realized that his arrogance and need for recognition were strong Narcissistic traits. I decided I could work with him if I gave him recognition for his “superior” achievements.
With the consent of the attorneys, I got Mr. Theodore talking about his background and the creation of his company – while avoiding the legal issues at hand until Mr. Mann would arrive. He calmed down immediately, and appreciated my interest and awe at his accomplishments. He had created a multi-million dollar business from nothing, based on his scientific skills and some bold business moves. He had been very successful, although his business eventually hit the skids.
Then Mr. Short, the Chief Financial Officer of MannTronics, arrived.
“Where’s Mr. Mann?” Mr. Theodore demanded.
“He was unable to make it so he sent me, as the CFO,” Mr. Short replied.
“Well, what can you know about this problem? This is a personnel problem.” Theodore challenged.
I inquired about Mr. Mann, as he was the named defendant in the lawsuit as CEO of MannTronics, and all parties should generally be present to have a productive mediation. It was obvious that Mr. Theodore had flown in to San Diego for this meeting, while Mr. Mann lived and worked nearby. However, I have learned to make no judgments and placed the problem back on those present.
“What do you all propose that we do about this situation?” I inquired, looking back and forth at Mr. Short, Mr. Theodore, and each of their attorneys.
“Can we meet separately with you for a few minutes?” Mr. Short asked me.
“I am always willing in a civil court mediation to meet separately with the parties in confidential caucuses. However, if I do so, I will also meet with the other side as well.”
They both agreed, and I met with Mr. Short and the MannTronics attorney.
“Mr. Mann cannot work with Mr. Theodore in any face to face setting,” Mr. Short explained. “Mr. Theodore is so easily angered and belligerent that nothing would be accomplished. Mr. Theodore cannot see how alienating and confrontational he always is. That’s why his business is doing so poorly. Even so, Mr. Mann has authorized me to settle this case with favorable terms to Mr. Theodore, just to get him out of our lives.”
This feedback reinforced my Working Theory that Mr. Theodore had a Narcissistic Personality. He may have sabotaged his best efforts by being so sensitive to those who did not see him as very superior. If Mr. Mann left Mr. Theodore’s “superior” company, that would have been a “narcissistic injury” to Mr. Theodore’s self-image, which a Narcissistic Personality cannot tolerate. But I decided to wait and see. I then met separately with Mr. Theodore as I had promised.
“I demand that he be here to face me,” he glowered.
“Mr. Short made it clear to us all that he cannot come today,” I explained. “As a court-referred mediator, I have the authority to require that he be here, so we can reschedule the mediation for another date – or we can proceed and see if an agreement can be reached today. If not, then we can reschedule. I know how busy you are and it might be the most productive use of our time today to give it a try. I don’t want to waste your time today without attempting a resolution to the problem you came so far to resolve. But it’s up to you.”
I knew that one of Mr. Theodore’s strengths was that he was, in fact, very productive. I had learned that he was a tireless worker, which was part of why he demanded so much of those around him. He liked my thinking – and my deference to him. He agreed to proceed.
We spent the next hour and a half in intense discussions over the insult to Mr. Theodore of a former sales employee going to MannTronics to work for his betrayer, Mr. Mann. No damage had yet occurred – no evidence of misuse of secrets, no contact with former clients – but Mr. Theodore had feared that they were inevitable. By focusing the discussion on developing a very structured “non-compete” agreement regarding customers, and nondisclosure of TedTronics secrets, procedures, and patents, we were able to construct a complete settlement of the issues of the lawsuit. It would be dismissed, and neither party would be held liable for any misdeeds. Mr. Theodore was satisfied with the controls put in place in the agreement we negotiated, and Mr. Short readily agreed to give Mr. Theodore a letter of apology for “miscommunications.” I had suggested that some form of apology might help in a case like this where one party felt so personally offended, because an apology can also ease a “narcissistic injury.”
During the negotiations, it became obvious that a financial settlement was never really an issue. Mr. Theodore was insulted and frightened by his belief that Mr. Mann had stolen a key employee, and he wanted to confront the bad guys and get some control over the situation. He wanted to be recognized and respected.
However, there was one unresolved issue: $7,000 in attorneys fees, which Mr. Theodore had spent so far in the lawsuit. This was a far smaller amount than the $200,000 lawsuit he had just negotiated away. Nevertheless, Mr. Theodore adamantly believed he should be paid something for his trouble, and he would settle for having his attorney’s fees paid by MannTronics. It appeared to me that this would satisfy what remained of his “narcissistic injury.” If he didn’t get this (he was probably thinking), it would appear that no one had done anything wrong – and that he had been a fool. He still strongly believed that he had been betrayed by Mr. Mann – again and again.
On the other hand, Mr. Short said there would be no payment or admission of any liability for any wrongdoing. MannTronics had paid their own attorney’s fees for this “unnecessary lawsuit,” so Mr. Theodore should really pay their attorneys fees, he suggested. But Mr. Short said they would absorb their own fees just to get this resolved. It made sense to me, but I was staying absolutely neutral.
“All we need to do is reach an agreement that both sides can live with,” I suggested. As they remained stuck on this point, I suggested one last caucus with each side.
I met with Mr. Short first. “Look, is there any reason you can think of to throw some small change at him? It doesn’t have to be an admission of anything. It seems to me that he needs something, no matter how small, to help him let go. And besides, you’ve already saved yourselves the costs and delays of going to trial.”
Mr. Short turned to his attorney. “What have we paid you so far?”
“I haven’t done much yet, since I strongly believed this case needed to be settled,” his counsel replied. “About $2,000.”
“You know, Mr. Theodore had to fly down here for this mediation,” I pointed out. “And your company kept him waiting. And the mediation rules say that all parties must be present, although we agreed to try this without Mr. Mann. Even a token might settle the case.”
“All right. Let’s split the difference,” Mr. Short said to his attorney. “Let’s give him $2,500 – half of the difference in attorney’s fees that he’s spent and we’ve spent. We’ll call it costs of settlement and an adjustment for his travel costs inasmuch as he had to travel so far to come here today.”
I then met separately, again, with Mr. Theodore and his attorney. “You know, court is always a roll of the dice. No matter how great your case, you could have lost there. I’ve had that experience myself in court – lost cases I should have won and won cases I should have lost. And you can’t prove any damages at this point in your case. It would have cost you so much more to take a very high risk at court.”
I continued: “Your attorney’s fees are lower than those in a lot of cases I mediate. Your attorney has been wise to encourage a low-cost resolution to this problem. You have better things to do with your time than spend it in court.” Of course, his attorney wanted to get this settled too, and reinforced what I was saying.
“I want something for what they did to me.” Mr. Theodore was adamant.
“Okay, then let’s meet together one last time and see whether we can reach an agreement on this last issue, or will have to go to court after all of your hard work.”
I got everyone back together and asked for any new proposals to resolve this minor issue. Of course, as a good negotiator, Mr. Short started with a lower offer than he was aiming for. “We’ll give you $1,500 for your attorney’s fees and for your trouble in having to come down here and file this lawsuit.”
Mr. Theodore’s face tightened. Then he blurted out, “I demand at least 2,000! And nothing less.”
“Oh, all right,” Mr. Short reluctantly replied. “2,000! It’s a deal.”
Mr. Theodore was satisfied. To him it was an admission of guilt and compensation for his hurt. Mr. Short was satisfied. To MannTronics, it was an adjustment for his travel costs and a low cost resolution of a potentially expensive legal dispute. Both sides agreed that their settlement would be confidential.
To me, it was a case of one narcissistic personality and three other reasonable people. If Mr. Short and the two attorneys hadn’t been so flexible and recognized the need to butter up Mr. Theodore a bit, it would have gone to court. Mr. Short was flexible and had been forewarned about Mr. Theodore’s difficult personality by Mr. Mann. If there had been two or more narcissistic personalities present, this case would probably have gone to court – even though it was really about hurt feelings.
I don’t believe that Mr. Theodore had a personality disorder, because he was generally successful in his work life. However, he appeared to have enough traits of a Narcissistic Personality for my working theory to succeed: He responded favorably to 1) a recognition of his true accomplishments, and 2) a focus on “being highly productive,” both of which were emphasized throughout this mediation. I purposely avoided direct confrontation of his self-sabotaging behavior, which would have backfired completely with a narcissistic personality.
Those with Narcissistic Personalities often become involved in legal disputes because they are high risk-takers, disdainful of others, and generally oblivious to the consequences of their own actions. They often feel like victims, when in fact, it is usually their own behavior that caused the events that now upset them. With these characteristics, conflicts with their attorneys, mediators, and therapists, are also to be expected. Compromise and settlement are not.
Those with this disorder, or traits of it, appear as parties in legal disputes on a regular basis, almost as frequently as Borderline Personalities. They generally do not pursue mental health treatment, except for help with a separate problem, such as anxiety or depression. They cannot see themselves as contributing to their problems. If you confront them with their own behavior, they will become very defensive and go on the offensive by verbally attacking you.
The DSM-IV describes Narcissistic Personality Disorder (NPD) as follows:
“A pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
Reprinted with permission from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Copyright 1994 American Psychiatric Association.
Relationships with those with Narcissistic Personalities are unsatisfying and uncomfortable. Over time, the buildup of resentment by those around the NP may reach a level of a legal dispute. Yet, when the NP is fired, divorced, or excluded from a promising business deal, the NP is caught by surprise and feels completely victimized by the other’s “insensitive” behavior. This often leads to the initiation of a legal dispute or the escalation of existing legal disputes, because of the NP’s inability to compromise.
NPs have a difficult time losing a dispute because they perceive themselves as so superior. Therefore, the easy settlement of a minor dispute may become impossible when an NP is involved. The NP is driven to extremes in defending against the claims of “less worthy people.”
The Narcissistic Person is oblivious to the effect of his drive to prevail, and may insist on testifying at trial – even though his attorney advises him the result will be disastrous. In some cases, the NP simply fires the attorney and looks for one who will agree with him.
In Mediation, the NP may have a very hard time accepting any compromise or settlement. Even when a very generous offer is made, the NP may keep pushing for absolute victory. At times, those involved in a dispute with the NP will simply give in, just to end the dispute. Attorneys with NP traits display the same rigidity in court, in judicial settlement, or in mediation, as they persist in a manner that most others would consider unreasonable.
Yet, by being so self-consumed, the NP simply replays his frustration with others over and over again. Few disputes are resolved in a satisfying manner; therefore, the NP constantly feels victimized – which he uses to justify his arrogant behavior and responses. Internal conflicts and unresolved hopes keep the cycle continuing.
NPs frequently seek out relationships with professionals, because this helps them feel superior. Eventually, the professional-client relationship disappoints the fantasies of the NP and the NP feels victimized – and sometimes retaliates. The retaliation may include verbal attacks, suits for malpractice, or even violence. If the professional abruptly or angrily terminates the relationship with the NP, there is a risk that the NP will sue or repeatedly attempt to contact the professional and convince the professional that he or she is wrong, to maintain the NP’s self-image as superior or innocent.
Some successful techniques with NPs have revolved around giving the NP positive feedback and admiration. By “stroking the ego” or boosting the self-confidence of the NP, the relationship between the professional and client will generally remain stable. While a professional may dislike engaging in such behavior, the price of rejecting the NP may be much higher. In many cases, the most effective technique is using a lot of respectful and interested listening skills. This will be discussed further in Part II of this course.
Mental health theorists and researchers have generally considered Narcissistic Personalities to develop in early childhood, possibly from child-rearing which is lacking in emotional nurturing, while over inflating the child’s sense of being special for some unique talent or personal quality – which may or may not be recognized by the larger society. (Beck, 1999, p. 235). One example would be the abusive parent who only praises his son for his fighting skills at school, when he shouldn’t be getting into fights in the first place.
This life experience may drive the child to obtain nurturing by overly emphasizing imagined personal qualities. Many believe that Narcissistic Personality Disorder is on the rise, primarily because of the social breakdown of consistent family environments (Ford 1998, Page 123) and the decreased opportunities to receive nurturing for children in today’s society. NPs are less likely than BPS to seek mental health treatment. When NPs do seek treatment, it is usually because of depression, substance abuse, or anxiety disorders (Beck, 1990, Pages 239-40). They may become depressed because of the gap between their high expectations and real life. Those around them may demand that they get treatment. They also may become attracted to and destroyed by “high-status” drugs, such as cocaine (Beck, Page 240).
When NPs do receive treatment, the most successful treatment appears to be long term individual psychotherapy, with an emphasis on confronting and interpreting inappropriate behavior, and discussing the alternative behaviors for more effective relationships (Lester, 1998, Pages 92-94).
When a legal professional wants to recommend therapy for a client with NP, it may be most effective to suggest counseling “for the purpose of dealing with the stress” of their legal dispute, rather than implying that there is something wrong with the person. Even short-term therapy may aid the NP in relieving stress and finding areas in which he can be more flexible. When a secure, positive relationship can be established with such a person, he can be a very stimulating and interesting client.
However, for significant change to take place the NP client has to have had a life experience that inspires him or her to want to change.
Aaron Beck, Ph.D., the cognitive therapist and researcher, provides an example of an attorney with NP who entered therapy, which is rare. His description helps understand this diagnosis:
“. . . David was an attorney in his early 40s when he sought treatment for depressed mood. He cited business and marital problems as the source of his distress, and wondered if he was having a mid-life crisis.
. . . .
“Feeling worse at work was associated with a heightened sense of discomfort in doing routine work, and the thought that such work was beneath him. He would think about how he really deserved better, and how he was not getting appropriate recognition for his talents and aptitudes. Consultations with colleagues often triggered thoughts of their failure to give him appropriate recognition, or their ‘nerve’ in saying something even marginally critical about him. David believed that because he was ‘different’ from other people, they had no right to criticize him. However, he had every right to criticize others. He also believed that other people were weak and needed contact with someone like him in order to bring direction or pleasure into their lives. He saw no problem in taking advantage of other people if they were ‘stupid’ enough to allow him to do so.
. . . .
“David felt better when someone flattered him; when he was in a group social situation where he could easily grab the center of attention; and when he could fantasize about obtaining a high-level position, being honored for his great talent, or just being fabulously wealthy. The composite picture produced by the assessment of David’s clinical history, his current symptoms, and his attitudes and automatic thoughts thus indicated a major depressive episode, of mild severity, with concomitant NPD.” Cognitive Therapy of Personality Disorders (1990) pp. 245-47. Used with permission.
Those with Narcissistic Personality Disorder tend to get into trouble with the law because of their superior attitudes - that somehow the law does not apply to them. As Beck further says:
“Narcissists are apt to become most resentful and contemptuous of anyone who tries to hold them accountable for their exploitative, self-centered behavior.
. . . .
“When in a position of authority, the narcissist may misuse power to exploit those under his or her influence. One likely example of this is sexual harassment. Another example is a stockbroker who excessively buys and sells or otherwise ‘churns’ a client account to generate commissions, regardless of whether money is made or lost for the client. Other public examples might be found among political figures who behave as if their authority exempts them from generally accepted norms of conduct.” Id., at 244-45.
With this type of behavior, it is easy to see how many narcissistic people end up in court – often to their own complete surprise. They are truly oblivious to the impact of their behavior and insensitivity to others.
It was after those words were written by Beck in 1990 that we had some of the biggest political scandals of the century. Newt Gingrich was driven from office as Speaker of the House of Representatives by legal action against him for his financial affairs. Bill Clinton was impeached as President with legal action against him for his sexual affairs. These were two of the most brilliant political minds in recent history. Yet it wasn’t their politics (from opposite ends of the political spectrum) which left them in disgrace; it was their personalities. Their own apparently narcissistic traits sabotaged them in high-conflict legal cases, at a cost to taxpayers of tens of millions of dollars.
Gingrich and Clinton are two excellent examples of how narcissistic traits probably helped them succeed over and over again. They appear to believe in themselves so highly that they were able to survive the endless criticisms and oppositions that politicians must endure. Both of them are especially known for their abilities to bounce back and reinvent themselves. But this also tells us that they kept getting into trouble, which made these skills necessary. Did they have personality disorders? I doubt it. They were (and still are) highly successful and powerful people. If my working theory is right, and they were to understand and treat their traits, they could still be even more successful. (Depending on your political persuasion, this could be a good or bad thing.)
In summary, NPs commonly cannot accept responsibility for the problems their own behavior has caused. They blame others for problems they continue to have. Their basic pattern of exaggerated superiority, blind persistence, lack of empathy, self-centeredness and self-sabotage often brings them to court or other high conflict disputes.
People with Antisocial Personality Disorder (ASPD) are fast and fast-talking. They win you over with charm and incredibly good deeds – or so it appears on the surface. They work hard to keep their true intentions and bad acts out of sight.
They chip away at your doubts and replace them with their own confident certainties. You may sense danger or deceit around them, but they convince you to doubt yourself and develop more confidence in their point of view. Thus, the phrase “confidence man” or “con artist.”
ASPs fear being dominated and therefore they desire to dominate and control others – it gives them a reassuring sense of power in the world. They often have a drive to hurt others to get what they want, as compared to the other personality disorders that involve primarily self-sabotage and inadvertent harm to others. This drive may range from taking advantage of other people – such as the con man who marries several women at the same time for their money – to the psychopathic killer, who is comfortable in killing you because he wants your attractive coat.
People with Antisocial Personality Disorders are skilled at fooling neighbors, spouses, legal professionals, and even mental health professionals. They are often involved in cases involving criminal charges and appear to make up a substantial portion of the prison population, frequently estimated at about 50%. They represent approximately 2 to 4 percent of the general population, with men appearing far more frequently than woman, at a ratio of about three to one (Lester, 1998, p. 35) or four to one (Ford, 1998, p. 108).
By adopting the term Antisocial Personality Disorder in 1980, the DSM combined the use of two prior terms, Psychopath and Sociopath, into one comprehensive category. These terms have often been used interchangeably to cover a range of behavior against the rules of society – thus they are called “antisocial” and “sociopathic.”
Chronic lying and manipulation are key characteristics of the ASP. Frequently, an ASP will attempt to persuade mental health professionals and legal professionals that another person is guilty of behavior which is actually his (or her) own.
The case of Mr. Gossage in Chapter 1 may be a good example of this personality. He recruited 20 advocates who testified on his behalf at the Bar Court. They were confident that he had changed. He showed remorse over killing his sister many years earlier. He did good work in the community. He overcame his drug addiction. Yet, did they know that he continued to get and ignore traffic violations – even during law school? Did they know that he only mentioned four of his 17 criminal convictions on his application to become an attorney? Probably not.
While those with this disorder frequently end up in the criminal justice system, those with traits of ASPD often show up in civil disputes. As I have often seen in cases with ASPs, the people they “con” become confident advocates who adamantly defend the ASP when they are challenged by others. To succeed, they must use and deceive other people to get what they want – friends, lovers, family, mental health professionals, attorneys, and even their own children. The example in this chapter show how this may works. However, a personality disorder is never mentioned, so it is another opportunity to consider a “working theory,” without making a diagnosis. After the example, the criteria under the DSM-IV will be reviewed.
The following information is summarized from a New Yorker magazine article in 2000, entitled “Marisa and Jeff.”
Jeffrey was a stockbroker in New York City in the 1990's. He had a checkered history of being fired by his firms for improper trading and false promises to investors. He handled one account for a retired man with over four hundred thousand dollars, and reduced it to approximately thirty thousand dollars. He had invested in stocks that gave him large commissions but were otherwise worthless. The outcome of all this was that he only lost each job, with no other punishment.
Then he befriended a young woman, named Marisa, who worked for Smith Barney as a stock analyst. Her job was to keep trading information she was studying as an analyst from being released to other investment divisions of the firm. Before she met Jeffrey, she never used this information improperly.
When they met, Jeffrey really impressed Marisa. He had lots of cash on hand, even though he was secretly moving from one residence to another after failing to pay his rent. Apparently unknown to Marisa, he was involved with alcohol, cocaine and betting.
Flattery apparently worked on Marisa, and soon she agreed to pass illegal information to Jeffrey. She was promised half of the profits, but he did not share them. He even passed this information on to others, without telling her. Her friends advised against being with him, telling her he was taking advantage of her. Nevertheless, she even spent the night at an expensive hotel with him, ended up having to pay the bill (about $2,000), and still remained friends with him.
She eventually confronted him and they had a big meeting at a restaurant. Apparently, he was already in trouble with the police, and he had agreed to be recorded for this meeting. He gave her $2,500, with about $30,000 more promised to be on the way. But this was nothing compared to the hundreds of thousands of dollars he and his other friends had made by investing based on her insider information. When she expressed her concerns that she could not trust him, he quickly regained her confidence with quick comebacks and assurances that he had never harmed their trust.
Apparently, the Manhattan District Attorney’s Office was pursuing Jeffrey for the case of the mishandled four hundred thousand dollar account mentioned above. So he eagerly offered to get information on the more important criminals, such as Marisa, so they were able to videotape and audio tape their restaurant conversation. They seemed caught red-handed.
However, neither Marisa nor Jeffrey went to trial. Instead, befitting his experience at betraying others, Jeff turned state’s evidence against his biggest trading partner, who Marisa never met. Marisa also testified at this partner’s trial in exchange for a reduced sentence. She, at least, appeared to take responsibility for what she had done, and even the prosecutors felt sympathy for what Jeff had done to her. She said she had only herself to blame, and the judge gave her two years probation.
Jeffrey’s trading partner got two-to-six years. And how did Jeff do? Could he con the court? Incredibly, the Assistant District Attorney argued for leniency – even after it was discovered that Jeff had misled the court, even under his agreement to cooperate. The D. A. said that since Jeffrey had cooperated in the investigation, he should be given leniency and that giving him a sentence as severe as his trading partner would discourage others from testifying about these illegal actions. The D. A. even said that Jeffrey had shown some remorse for his actions. Jeffrey stated that he had changed his life around, including getting off drugs. He got a sentence of about one to four years.
Jeffrey succeeded in manipulating Marisa. She was impressed by his generosity – throwing money around – and by his claims that he would never take advantage of her. When she had doubts, he quickly rebuilt her confidence in him with sweet talk that she was special and arguments that he never gave her a reason not to trust him. Yet all the time he was keeping most of the money and bringing other people in on the deal. A classic con, he was fast-talking the positive to hide the negative. He also had no empathy for her and was immediately ready to sacrifice her to help him escape consequences.
And he even conned the prosecutor! The Assistant District Attorney detected some remorse in Jeff. This obvious con helped divert him from the fact that it was Jeffrey’s scheme from the start. The key lesson about con artists isn’t their misdeeds, but their ability to effectively divert attention from them with fast talk, charm, and lies. If Jeffrey has an Antisocial Personality, then lying would be routine and carry with it no shame or even a recognition that it is bad. The ASP assumes that everyone is lying and that it is an expected part of the game of life. When confronted, the ASP quickly blames someone else – the Target of Blame – for something even worse, to divert from his own misdeeds.
Does he seem to fit the following personality traits? A complete clinical assessment would be necessary to answer that question. However, the following gives you criteria to consider.
The DSM-IV identifies those with Anti Social Personality Disorder (ASPD) as follows:
“There is a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three (or more) of the following:
“In contrast to the other personality disorders, a formal diagnosis of antisocial personality disorder requires a childhood history of similar behavior. Conduct Disorder includes:
“Aggression to people and animals; ... Destruction of property; ... Deceitfulness or theft; ... [and/or] Serious violations of rules; ... [which] causes clinically significant impairment in social, academic or occupational functioning.” Reprinted with permission from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Copyright 1994 American Psychiatric Association.
The irony for ASPs is that they have the strongest drives and fantasies for being in control of others and getting whatever they want. Yet, they are the ones who are most likely to wind up in highly controlled environments themselves – such as prison. While they need the assistance of others to defend them when they constantly get into trouble, they have great difficulty developing relationships – except for those based on manipulation and deception. Their efforts at manipulation and short-term gratification often sabotage any possibility for long-term success at any endeavor – including remaining out of prison.
One can easily predict difficulties in working with ASPs The ASP will want to be in control and will attempt to do so by manipulating the information provided to his attorney and other professionals. This will make the work of the professional very difficult, and the response of the professional quite negative.
ASPs can be effective at charming mental health professionals and legal professionals. It is not uncommon for these professionals to discover that they were deceived – after the fact. In some court cases, there are psychological experts with very strong opinions about the person – but the opposite of each other.
However, while many people have believed that ASPs are more intelligent than the average person, the research does not support this. In reality, there is no evidence of a correlation between intelligence and psychopathic individuals (Malloy, 1997, p. 87). Apparently, there is the normal range of high intelligence, average intelligence, and below average intelligence in this population.
In any case, you need to be cautious about believing the information you are provided and about any extra favors the ASP may ask of you. Their creativity is unlimited, with a lifetime of practice.
Antisocial Personality Disorder appears to develop out of a combination of biological and environmental factors. However, in contrast to Borderline Personality Disorder and Narcissistic Personality Disorder, Antisocial Personality Disorder appears to have a stronger genetic link. Studies of adopted children show that if a biological parent was sociopathic, there is a greater risk of the child developing a sociopathic personality – even if their adopted parents were not sociopathic (Ford, 1998, Page 108). This finding is supported by anecdotal reports I have heard from criminal defense attorneys – even when the children were raised from birth by non-sociopathic parents.
Some research indicates that the biological differences of ASPs may be based in the central nervous system. They appear to have less of an ability to respond to negative events, so that they are less likely to sweat, their heart rate remains the same or decreases, and they feel less fear and less guilt. Of course, it is hard to know if these are a cause of antisocial behavior or a result of physiological changes as the ASP grows comfortable with antisocial behavior.
Early life experiences and environment cannot be ignored, however, although these may be less of a factor with this personality disorder. It appears that chaos in the household and inconsistent reinforcement of social values may train a child for antisocial behavior. Children of severe alcoholics and addicts may experience this inconsistency, as they absorb the antisocial behaviors of addicted parents into their own personalities. Ironically, in the event that the parent becomes a recovering alcoholic or addict, he or she may stop showing signs of antisocial behavior, such as lying, violence, and lack of remorse – but the child may have already learned them as permanent behaviors.
While most alcoholics and addicts do not have antisocial personality disorders, a large proportion of ASPs are alcoholics or addicts. By law, drug addicts are engaged in antisocial behavior. However, if the drug use stopped, most would not engage in other antisocial behaviors. For the ASP, drug use is just one of many high-risk and illegal behaviors.
Some research has indicated that learning to lie extensively in childhood may be a strong predictor of antisocial behavior in an adult. As the DSM-IV criteria explain, antisocial behavior in the form of a conduct disorder prior to age 15 is a necessary requirement for the ASPD Diagnosis, and lying is one of the core criteria of a conduct disorder.
Treatment of the ASP is very difficult. For those who do not meet the full criteria for ASPD, some cognitive therapy methods have been successful at addressing traits of ASPD. (Beck, 1990, p. 170). However, for those who are diagnosed with the full disorder, treatment is very difficult because of the many qualities of ASPs that make them antagonistic to personal change and bonding with therapists – or anyone.
Extremely low or extremely high intelligence have been found to be factors that decrease the likelihood of successful treatment in an ASP (Meloy, 1997, p. 88). This would make sense, given the lack of insight for the low-intelligence ASP, and the strong ability to manipulate characteristic of the high-intelligence ASP.
However, group therapies have had some success. Some examples of these are “batterers groups” for treating perpetrators of domestic violence, long-term “therapeutic communities” for hard-core drug addicts, and prison treatment groups for child molesters. These programs all are based on direct confrontation by peers who share many of the same characteristics and therefore can see through the cons and connect with the true vulnerability deep beneath the surface. While these groups appear to be the treatments of choice for ASPs, the success rate appears far more limited than for the other personality disorders. This would make sense, given their inability to form interpersonal bonds – in contrast to BPS and NPs, who form bonds (albeit negative and conflictual) upon which positive treatment can be based.
Therapists may be called to evaluate ASPs for a variety of purposes related to allegations of criminal behavior. The likelihood of manipulation is extremely high and most therapists are not trained in or skilled at detecting deception. In providing psychotherapy to ASPs, therapists must be very realistic and feel comfortable using consultation and feedback from other sources regarding the client’s true behavior.
Perhaps the more likely concern for most therapists, attorneys and mediators, is having clients with traits of antisocial personality disorder. These are the clients who look very good and do not yet have a known history of criminal convictions, but may have been engaged in criminal behavior without being caught and may be highly manipulative and charming. Because they are so adept at appearing normal and credible, their claims of innocence or allegations against others may be believed by legal professionals and even the courts. Greater skepticism and training are needed in this area.
Antisocial personalities have no fear. They’re not afraid of lying and being caught; they’re not afraid of using other people or hurting them; they certainly are not afraid of authority – including the courts. They will lie and manipulate without conscience or concern for others because this is what they believe they are entitled to have.
Courts have a particularly hard time spotting ASPs, because they are so good at manipulating sympathy. They are the most persuasive victims – not because they are true victims, but because they have learned that this works. They do whatever will work, without being inhibited by reflection, guilt, or fear, which would stop most of us from even considering such behavior.
Over the past decade, I have noticed a significant increase in antisocial personality traits in Family Court cases – and they fool almost everyone, at least for a while. In recommending how to work with antisocial clients, family law attorneys are now specifically advised to be on guard for shifting stories and aggressive behavior that violates or disregards other’s rights for the ASP’s selfish purposes. See The Family Lawyer’s Guide to Building Successful Client Relationships, Sanford M. Portnoy (2002).
From my experience in family courts, I have seen at least ten cases with antisocial similarities to the following case:
In September 1994, Mr. Halo became involved with another woman and divorced his wife. They did a simple divorce agreement themselves, and he filed it with the court – about a year later. Based on their agreement, the mother had primary physical custody of their son, Peter, who was 6-years old at the time. Two years later, the mother remarried a Mr. Johnson, who had two children of his own who lived with them half-time.
Over the next five years, Mr. Halo paid $200 a month in child support – somewhat sporadically, as he was a self-employed plumber. He occasionally saw his son, but refused to follow any schedule. There were times when he went a couple months without seeing him.
By January 1999, Mr. Halo’s business was doing better than ever, and the mother found out what the child support guidelines would be based on her estimates of what he made. She could receive $800 - $1,000 per month, instead of the $200. She wrote a letter to Mr. Halo requesting this increase, but received no reply.
On March 1, 1999, the mother was served with papers that had been filed at court by Mr. Halo. The papers stated that there was a Family Court Services (FCS) counseling appointment scheduled for March 8, 1999, and that there would be a hearing two weeks later about a change of custody of Peter to the father. When she and Mr. Halo met jointly with the FCS counselor, Mr. Halo pulled out a letter written by a therapist about Peter, now 11-years old, and read it to the FCS counselor:
“I interviewed Mr. Halo and his son, Peter, 11 years of age, on Saturday, February 1, 1999. I spent most of the session with Peter alone, then the last 15 minutes with Peter and his father together. Peter told me that his stepfather, Mr. Johnson, inflicted a lot of emotional distress on him. Peter began crying and shaking while he related his story to me. He told me that his stepfather locked him in his room for hours at a time, and that his mother kept him from seeing his father. He said that his stepfather screams and yells at him all the time.
“I became very concerned for his welfare, which is why I am writing this declaration. I am recommending that Mr. Halo immediately seek an order from the Court appointing a mental health professional to begin therapy with Peter.
“As you know, it is not my style to treat a child without the knowledge and, if possible, involvement of both parents. In an initial telephone conversation with Mr. Halo, I told him of my policy and he agreed to tell Peter's mother about the appointment after it took place, when he returned Peter to his mother. During the session last Saturday, Mr. Halo expressed a reluctance to do so, stating that he felt repercussions from this would impact Peter in a negative manner.... I was not given the telephone number, so I remain unable to speak with Peter's mother.”
After the FCS Counselor read this, Mr. Halo told him that the therapist said that life was a “living hell” for Peter in the mother’s household. The FCS Counselor was so concerned for Peter, that she took the letter. The mother was aghast to hear of this letter from this unknown therapist who had never been to her house nor even spoken with her. The FCS Counselor made a copy for the mother.
The mother called the therapist and expressed her anger about the secret session. She said that Peter must have been coached by his father, because he had been doing fine in her home. His grades were sufficient and he was involved in sports. They spoke very briefly.
The next day, the mother was served with a declaration written by her son, also signed on February 1st – a month before the mother even knew there was a court case about to happen. Peter and his father had kept all of this a secret from his mother for a month. Peter’s letter said the following:
“To the Family Court Judge:
My mother treats me like a little boy. Sometimes she pulls my hair. I want to live with my father. We always have fun together. I hope the custody battle doesn’t interfere with my trip to Alaska with my father this summer.”
The mother was shocked to read her son writing words like “custody battle.” She’d never before even heard her son use such words. No wonder he seemed quieter and wanted to sleep a lot the past month, she thought. And I never pull his hair, except accidentally when I’m cutting it for him.
Then she went back to look at Mr. Halo’s declaration, which was signed March 1, 1999, and served with the papers announcing the “change of custody” hearing:
“The situation in Mrs. Johnson’s household has adversely affected Peter. Peter has shown signs of emotional problems and instability. He has low self-esteem and self-confidence. This could probably be documented by a child counselor.”
She realized that on March 1st he was pretending that there was no child counselor who had been seen yet. “This could probably be documented ...” She thought to herself that he’s so manipulative, that no one would believe him.
Then the mother received the FCS Counselor’s report:
“I spoke with the child’s therapist. She told me that the mother was hostile and making accusations that the father had coached the child. The therapist said that she saw no sign of coaching and that she believed every word that Peter said. She expressed great concern about his welfare in the mother’s home. The mother’s negative attitude seemed to confirm what the father had said, the therapist told me.
“I also considered the mother’s allegation that the father has a drinking problem and has given the son an occasional drink. The father reassured me that he stopped drinking a year ago and that he never gave the son a drink.
“I met with the son alone, while both parents waited outside in the waiting room. He denied ever being given a drink by his father and said that he enjoys his time with his father more than with his mother. But that he loves both of them. He said that his mother annoys him and treats him like a young child sometimes.
Therefore, I am recommending an immediate change of custody to the father. The child seems to have a stronger bond with the father and has conflicts with his mother and stepfather. He also seems very frightened of his stepfather. I recommend that he only spend time with the stepfather in the mother’s presence.”
At the subsequent court hearing, the mother’s attorney argued that the father had totally manipulated the therapist, the FCS counselor, and the court process. He requested a psychological evaluation to thoroughly examine the situation before any such change of custody occurs. However, the judge was persuaded by the father’s apparent sincerity and interest in his son.
“We have two mental health professionals reaching the exact same conclusion, the child’s therapist and the FCS Counselor. Therefore, I see no need for a psychologist. This appears to be a very concerned father who has a strong bond with his son. The change of custody will be effective today.”
The father immediately stopped paying child support to the mother. He never made any effort to set up counseling for the child. The mother insisted that counseling be set up, but the father refused and said the problems were solved by the change of custody. Besides, it would cost too much.
Friends of the mother said they still saw the father drinking. In January 2000, there was a change of judges and the mother went back to court to again request a psychological evaluation and to explain to the court that the father was still drinking. The new judge was persuaded to order the evaluation, and the parents were ordered to split the cost.
Not surprisingly, the father delayed agreeing on who the psychologist would be, and then he delayed paying his share of the deposit for the evaluation. Over the course of the next year, the psychologist held many meetings with each parent, the son, and each parent and the son together.
Since this was going to start costing him money, the father decided to seek child support from the mother. However, since another family court hearing would not occur until the evaluation was completed, Mr. Halo decided to go to a different court. There was a separate court in this county for Family Support matters involving the District Attorney’s office. He sought the District Attorney’s assistance, and they scheduled a hearing on Child Support. When the hearing date came, Mr. Halo didn’t show up because the District Attorney’s office was taking care of it for him. Mrs. Johnson didn’t show up, because she didn’t know about it -- he never had her served with the papers for the hearing.
The Family Support court ordered a continuance and the mother was served with the court papers. She had to hire an attorney to assist her in preparing a written response and going to the hearing. At the hearing, the father again wasn’t present. The mother’s attorney explained that the case was active in another court – and that the psychological evaluation was now held up because the father wouldn’t make his final payment to the psychologist. Once he paid, the Family Court would address custody, visitation, and child support. The Family Support court dismissed the case.
The father finally paid the psychologist, and the report came out. There was nothing to support the allegations against the mother and stepfather, so the restriction against the son being alone with the stepfather was removed. However, since the son was established in the father’s home, the psychologist didn’t want to return to the prior schedule. He also observed that the son appeared more relaxed and playful with the father when they came to his office, than he did with the mother. So the psychologist recommended – and the mother reluctantly agreed – that the mother would have 40% of the parenting time and that the father have 60%. This was an increase for the mother from the 20% visitation time she had during the year and a half from the first change of custody hearing and she was not going to push it any further. Peter seemed happy with his mom and his dad both, so she decided not to put him through any more stress.
The net financial result of the above case for the father was a savings of $100 per month in child support payments, when he had been faced with an increase to $800 or $1,000. Another strong reason for his actions would be his drive to dominate, rather than feel dominated by, the other parent.
Whenever I have seen this pattern in a custody dispute, it appears to be triggered by a change in financial expectations. Either the ASP has had a financial setback, or the other parent has made a financial request. The urge to dominate – and the fear of feeling dominated – seems to emotionally drive the ASP to seek custody. It’s not just about money.
A caveat for clinicians is to understand that it is not ethical to take a position about situations or persons that one has not directly observed (APA Code of Ethics, 2003).
Interestingly, the mother and her husband, Mr. Johnson, successfully raised his two children in their home at the same time as this 2-year “custody battle” was proceeding. They got top grades in school and won some awards. This is in the home that was called a “living hell” at the start of the case by a mental health professional, when Mr. Halo had launched his secret bid for custody.
ASPs can be identified easiest by their patterns of repeatedly violating minor laws, such as traffic violations or IRS filings. One example was the traffic tickets of Mr. Gossage in Chapter 1. In another example, in a divorce I handled, the husband told his wife and the court counselor that he had never been arrested for drunk driving – when in reality he had been arrested twice for this and had a trial the following week! I found out by easily researching public court records. They do not expect their statements to be researched, or they believe they can talk their way out of the results.
One of the most striking aspects of ASPs that I have observed in legal disputes is how easily and aggressively they use other people to their advantage in their disputes. Mr. Halo involved his children throughout their divorces in a way that most people would find highly disturbing. Jeffrey Streich turned against and used his girlfriend and his business associate to protect himself. Mr. Gossage involved over 20 community leaders and friends in his plea to become an attorney despite his ongoing violations of the law.
Family courts, attorneys, and even mental health professionals often think that a manipulative parent’s behavior toward the children is based on difficulty getting over the divorce. From my perspective, with ASPs it is much more likely to be that they want control over someone. If they can’t control the spouse (who they have often abused), they frequently turn to the children and seek a change of custody. With their charm, childish behavior, false promises, and threatening statements, they often win them over in their disputes. For the unwary decision-maker, the “child’s expressed desires” often turn the tide and many ASPs get custody this way.
ASPs biologically appear to have extra confidence – and a lifetime of learning to con others. They are not worried about their trail of lies and harmed people. They are fast and skilled at diverting attention. ASPs can be very effective in the legal process, where verbal persuasion and suppression of evidence are the rules of the game. They’ve played this game all their lives.
I suspect I’m dealing with a Histrionic Personality when I spend an hour with my client, but only get 5 minutes of work done. “He’s the most awwwwww-ful person you’ll ever meet. IT’S JUST NOT FAIR how everybody listens to him. [Whispers] You know what he did last week? YOU HAVE TO HELP ME stop him. If you can’t make him give me the money he owes me – my RIGHTFUL share, I’m going to the newspapers – and the police!” And on and on. High intensity emotion, but few facts and little focus.
A good description of Histrionic Personality Disorder can be found in two Court of Appeals cases, one in South Carolina and the other in Wisconsin.
“According to Dr. Boland, persons suffering from histrionic personality disorder display exaggerated and short-lived emotions, are flirtatious and flighty, lack insight and integrate the experiences poorly. Their judgment tends to be undependable and highly erratic. They may appear charming to casual acquaintances but those with more enduring relationships are likely to see them as testy, irritable, antisocial and manipulative.” Housand v. Housand (1998) 333 S.C. 397, 404.
It is interesting to note the impact this has on those around them, including their children. The psychologist above explained more, after observing each parent with the children:
“Parents with this style of interaction tend not to provide the structured discipline that children require to develop into healthy well-adjusted adults. They may fluctuate from being passive and ignoring problems to being excessively angry when things have gone too far. In these circumstances, the children merely learn to act out and do as they please until the parents verbally become angry and lose their temper.
“By contrast, Dr. Boland found no evidence of any psychological problems in the Father that would interfere with his ability to be a parent.” Id. at 405.
In Wisconsin, a Court emphasized that this disorder does not prevent one from working:
“Histrionic personality disorder affects the manner in which the individual deals with people and is characterized by a tendency to draw attention to one’s self, be flamboyant, have shallow relationships with others, but does not affect the individual’s ability to maintain employment.” DeLaMatter v. DeLaMatter (1989) 151 Wis. 2d 576, 581.
In the DeLaMatter case, the Court reversed the trial court’s award of alimony to the wife that the trial judge had ordered believing she could not work, based on her panic attacks and histrionic personality disorder. Further, the trial court believed that Ms. DeLaMatter’s alcoholism had been caused by her mental illness. The Court of Appeals disagreed and determined that her refusal to get alcoholism treatment was a poor excuse and that her personality disorder did not itself prevent her from working.
“Dr. Bjerregaard never opined that Barbara’s mental illness precluded her from maintaining employment. To the contrary, he testified that the panic and personality disorders, absent the alcoholism, would not bar Barbara from maintaining steady employment. Rather, it is Barbara’s alcoholism that precludes her from being employed. We conclude that the trial court’s finding that Barbara’s mental illness precludes her employment is clearly erroneous.” Id. at 587.
Histrionic Personalities are known for their emotional intensity and drama. The commentary in the DSM-IV states: “If they are not the center of attention, they may do something dramatic (e.g. make up stories, create a scene) to draw the focus of attention to themselves.”
Olan Guilbeau, a mobile home salesman in Louisiana, took sick after a new carpet with an awful-smelling adhesive (manufactured by Henry Co.) was installed in his office in 1986. Two days after the installation, he went to his doctor of over 20 years, complaining of “headaches, lightheadedness, tingling sensations of the skin, and numbness in his chin.... Dr. Clause testified that he observed no distress, confusion, speech or learning impairments, or differences in Guilbeau’s behavior...” Guilbeau v. Henry Co. (1996) 85 F. 3d 1149, 1154.
The next day, he went to the hospital.
“Guilbeau was examined by Dr. Sabatier, who found decreased oxygen in Guilbeau’s blood, which he attributed to smoking; but chest x-rays showed no evidence of organic solvents, and no traces of such materials were found in his blood or urine. Mrs. Guilbeau testified that the doctors ran tests and said Guilbeau was fine, but that he should stay away from the office for a couple of days.” Id., at 1155.
He went to work one more day after that, but his wife said that he went home early because of the smell. “[S]he took him to see Dr. Fournet, who x-rayed his lungs and tested his blood and urine, but found no abnormalities.” Ibid.
In October 1986, Guilbeau saw a doctor at Tulane University, who referred him to an internist who referred him to a psychologist, Dr. Friedberg.
“Dr. Friedberg administered the Minnesota Multiphasic Personality Inventory (MMPI) to Guilbeau; the results and Friedberg’s analysis indicated that Guilbeau was a somaticizer, meaning that he complained of physical ailments without physical cause. The MMPI scales for hypochondriasis, hysterical components, conversion reactions, depression, and psychopathic deviant (which measures impulsivity and poor impulse control) were elevated....
“Friedberg testified that he had treated other toxic exposure patients, and saw no parallels between those patients and Guilbeau...” Id., at 1156. (Emphasis added)
By 1987, a psychiatrist, Dr. Rees, examined him and saw him a total of five times. By then his symptoms “included smelling ether in the bathroom, seeing things that were not there, extreme anxiety, anger, and complaints about at least eight parts of his body; Dr. Rees was concerned that Guilbeau might go into an uncontrollable rage.... He did not think that exposure to toxins could have caused all the symptoms that Guilbeau was reporting, and could not have caused Guilbeau’s unusual anger at every physician he had seen. He testified that he was absolutely certain that Guilbeau’s symptoms had nothing to do with his exposure to adhesive, and that he was sure, as the result of his examination, that Guilbeau did not have organic brain damage.” Ibid.
Yet his symptoms continued to escalate dramatically. By 1988, his wife testified that “his symptoms include impotence, vision problems, pain in his ears, nose, throat, chest, and back, sleep disturbances, pressure in his head, penile lesions, sores in his groin area and on his buttocks, fizzy urine with red, white, and brown crystals and ‘mushroom’ type things that looked like cotton balls in it, white particles in his stool, sores at his hair line, which has started to recede, seizures, and confusion.
. . . .
“His diary contains a drawing of his vein, and he reported that he could feel chemical deposits moving through his veins, creating ‘a cool, itching, raw, burning pain.” Id., at 1155.
By 1989, Guilbeau was seen at the Tulane Medical Center by Dr. Black, professor of neurology and psychiatry, who examined him on two occasions.
“Dr. Black conducted extensive psychological testing, and found no brain damage, but found somaticizing and histrionic personality disorders. Dr. Black’s 1989 report states that Guilbeau’s complaints are more likely than not due to a psychiatric disorder rather than to residual effects of any alleged toxic exposure.” Ibid. (Emphasis added)
By 1989, the Guilbeaus also had posted a sign on the door to their house, which stated:
“DO NOT ENTER if you are wearing the following: perfume, hair spray, cologne, after shave, deodorants, new clothing, powder, makeup. There is a Toxic person living in this house who is allergic to all these above products. With your understanding, we can help him from having severe seizures and severe multiple pain.” Ibid.
However, the Court of Appeals was not impressed with his sensitivities:
“Amazingly, the smoke from the one and one-half to two packs of cigarettes he smokes each day has no adverse effect on Guilbeau; and he is not bothered if others smoke cigarettes in his presence. He uses a lighter with lighter fluid to light his cigarettes, but has not complained about the smell from the lighter fluid.” Ibid.
One of the lessons I have learned from HCPs is that they can eventually find a doctor, lawyer, or other professional who will agree with them, although they may not be the most respected in their fields.
In this case, Guilbeau found a doctor, Dr. Callender, who became their expert witness. In 1987, they found attorneys and filed suit against the Henry Company. The case “finally proceeded to trial in January 1994 on its 13th setting, with the Guilbeaus being represented by their third set of lawyers since suit was filed.” Id. at 1159. (Emphasis added)
At a previous trial date in 1993, the Guilbeaus were not ready but Henry Co. was. The court ordered one of the Guilbeaus’ attorneys to pay $11,186 to Henry as sanctions, to cover Henry’s expenses in preparing for trial for the December setting. Ibid. The Court of Appeals had many negative things to say about the Guilbeaus’ attorneys, citing the possible coaching of a witness as “a typical example of the numerous problems arising out of the conduct of counsel throughout the trial.” Id. at 1163.
At this point in our story, it would appear that so many doctors and other professionals had reached such similar conclusions – somaticizing and histrionic personality – that there would be no chance of success in court. No one in 20 years had been adjudicated to be harmed by the Henry Co. solvent, which had been sold to thousands of people. The person who replaced Guilbeau has felt fine in the office. The two workers who installed the carpet said it smelled, but they also felt fine afterwards. But think again.
The Guilbeaus won at trial! They convinced the jury that they had both been injured – Mrs. Guilbeau by loss of consortium with her disabled husband. The jury awarded Mr. Guilbeau $2,000,000 and Mrs. Guilbeau $900,000.
How could this happen? Remember what I’ve said about “peripheral persuasion” and the emotional appeal of a histrionic personality disorder. At the trial level, the judge and the jury get to see all of the trauma that the parties can muster. From the Court of Appeals opinion, it appears that emotions played too big a part with the jury, and that facts were glossed over or simply not addressed. The Court of Appeals reversed the decision and found in favor of the defendant, Henry Co. They were particularly critical of the attorneys for Guilbeau.
Henry Co. claims that Guilbeau’s “trial counsel engaged in improper trial conduct and made improper closing arguments to confuse and inflame the jury.” Id. at 1160. The Court of Appeals appears to have agreed:
“[T]he conduct by the Guilbeaus’ trial counsel and appellate counsel causes more than great concern. Counsel is cautioned that such conduct in the future will result in the imposition of severe sanctions. But, this great concern goes beyond sanctions; the greatest concern is that counsel seems intent on winning at any cost, notwithstanding concomitant violations of long established rules of practice and evidence (all designed to attempt to ensure fundamental fairness), and in disregard, it seems, of the truth.” Id. at 1171.
It cannot be known from simply reading the opinion of the appeals court whether the attorneys were simply communicating the views and personalities of the Guilbeaus in their actions, or if they were independently acting so badly. From my experience, the attorneys for Cluster B personality disorders tend to either share their proclivities for extreme emotional manipulation or are simply doing whatever their clients want – to their own detriment. But this observation by the Court of Appeals seems well put and similar to many other cases.
Histrionic Personality Disorder (HPD) is considered present in about 2-3% of the general population, and 10-15% of mental health treatment populations. (American Psychiatric Association, 1994) The majority are women, although there may be a tendency for men with these characteristics to be diagnosed as some other personality disorder. HPs share some similarities to the other Cluster B personality disorders mentioned in this book, including attention-seeking (Borderline), excitement seeking and manipulative (Antisocial), and self-centered (Narcissistic).
The DSM-IV defines Histrionic Personality Disorder as:
“A pervasive pattern of excessive emotionality and attention seeking, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
Reprinted with permission from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Copyright 1994 American Psychiatric Association.
As the HP operates so much on an emotional surface, relationships with her are difficult and superficial. Those close to an HP usually maintain an emotional distance, while taking care of her and the problems she causes. Those who remain in her life are often very “co-dependent” and resigned to letting someone else’s crises be the focus of their lives.
Yet HPs can be fascinating and very exiting. Romantic relationships with an HP usually start intensely, but end up as disasters. They may be stormy for years, and then have dramatic endings. Temper tantrums, manipulations, and angry outbursts may be common (Beck, 1990, p. 214).
While not a specific DSM-IV criteria, fabrication is common, especially in legal disputes, and has been noted by psychological researchers. This appears in a range of behaviors from simple exaggeration to the complete description of nonexistent events. Researchers describe such HPs as unconcerned about truthful details if the distortion does the job better (Ford, 1996, pp. 114-115).
While noted for their skills at lying, HPs are generally not considered to have the same hostile motivations as those with Antisocial Personalities, but rather have attention-getting goals. However, some researchers have found a close similarity with antisocial behavior for some HPs. Apparently some female prisoners, when deprived of the ability to engage in antisocial behaviors, will shift to hysterical behaviors instead. (Ibid.)
Generally, their deceitfulness is intended to get people to pay attention or like them. Unfortunately, since most of their emotions are simply on the surface, their deception and shallowness eventually angers or irritates most people, who then try to escape being around them. True intimacy, therefore, is unlikely for these clients. They deceive themselves as much as they deceive anyone.
While dependency on others is not a criterion for a formal DSM-IV determination of HPD, it appears to be a strong characteristic noted by many authors regarding those with HPD, and a key issue in legal disputes. They generally have developed the belief that they cannot handle matters in life on their own. Therefore, they seek attention and constant assistance from others. They use this dramatic approach to handle problems they cannot handle themselves. (Beck, 1990, p. 215).
Mr. Guilbeau’s life seemed to be on hold, as he expected the court to do something about his problem – which most professionals and the appeals court said did not exist.
Because of their attention-seeking and provocative behavior, HPs frequently find themselves offending others or feeling offended in a highly dramatic way. Yet they take no responsibility for their reactions, such as admitting they are inappropriate or exaggerating. Therefore, they frequently remain engaged in a campaign of gathering allies against their alleged persecutors.
To resolve a dispute by compromise – with the HP making some concessions – would shatter the HPs fantasy that the problems are all caused by others. Since maintaining a false image of being lovable and competent is a preoccupation for the HP, any concessions may feel life threatening instead. Therefore, negotiation and mediation may be very difficult.
In court, HPs may enjoy performing and playing out the fantasy of a victim – modeled after one of the celebrity victims they have seen so often on TV. However, this wears thin with the court personnel who must deal with the HP and they eventually become angry with her and rejecting of her, resulting in exactly the experience she had hoped to avoid.
The interpersonal goal of the HP is to be loved and cared for. However, in reality, the HPs behavior triggers anger and intense desire to escape from the relationship. As each person around her eventually abandons ship, she must constantly be on the look out for new people to care for her – and her drama continues and escalates yet again.
For HPs, relationships with professionals quickly turn sour. This is often based on their high drama and excessive demands for time and attention. While at first they are seen as very charming (even seductive), this wears off quickly as they turn on the heat of their intense emotions. Professionals may be easily charmed or drawn into deep concern about the HPs problems. One must be very careful and ask for supporting details to corroborate all of the dramatic allegations.
It is important for professionals to understand that HPs do not remember events with attention to detail. Instead, their memories are emotion-driven and highly dramatic. This is not necessarily an intentional deception, and often is a true self-deception. However, it is best to find corroboration for their allegations.
With intense emotions and dramatic claims, it is easy for the novice professional to be seduced into assuming the role of super-hero. Demands may be so endless that the professional is tempted to give in to them rather than resist the HP. This is a serious mistake. In this manner, the professional simply reenacts the typical relationship pattern of the HP (Beck, 1990, p. 220). To avoid falling into this pattern, the professional must help the HP focus on details and straightforward assertiveness (Id. at p. 221). One must avoid getting absorbed in the drama and focus on specifically what occurred or specifically what needs to be done next.
If the Histrionic does not get her needs handled as she wishes, she will frequently seek other professionals from whom to get assistance, including having others put pressure on the attorney, mediator, or therapist. Ultimately, HPs frequently change therapists, attorneys, and other professionals in order to avoid intimacy and to avoid risking rejection. In contrast to Borderline Personality Disorder, those with HPD do not maintain angry attachments, but instead lose interest and move on – on a frequent basis.
The widely-respected personality researcher, Ted Millon, sees HPD as a result of biology and social learning (Beck, 1990, p. 215). Some studies have indicated that HPD may have some hereditary factors and is biologically related to Antisocial Personality Disorder. Apparently, some genetic studies indicate that families with Antisocial sons more frequently produce Histrionic daughters (Ford, 1996, p. 113).
Some psychoanalysts see the development of HPD as resulting from unresolved early childhood issues. For example, rather than developing an identification with her mother, a girl may have developed an excessive competition with her mother for her father’s attention. Perhaps she was so successful that she has remained stuck in this role (Ibid). Most prevalent is the belief that HPD is caused by a combination of biological and social experiences in early childhood.
One of the key components of treatment for HPD is teaching the client to become more logical and problem-solving, in contrast to her highly-emotional responses to events. Research indicates there has been success with cognitive-behavioral therapy on an individual and group level (Beck, 1990, pp. 218-24). Learning to focus on facts and details, and to replace dramatic words and emotions with more realistic ones, are helpful aspects of the treatment. Fortunately, this focus on specifics and tasks is also highly compatible with helping the HP resolve her legal disputes.
Legal disputes generally involve numerous advocates: attorneys, witnesses, support persons, investigators, supporters in the courtroom, and those funding the legal case. Interpersonal disputes often involve family members, neighbors, coworkers, and sometimes therapists and other professionals.
High Conflict Personalities don’t get very far unless they persuade others to adopt their cognitive distortions and assist in their interpersonal battles. In substance abuse treatment, we call these persons “Enablers.” They enable the person to stay stuck in their negative behavior, negative thinking, and their avoidance of responsibility. I use the term “Negative Advocate” for enablers in legal disputes, because the adversarial process relies so heavily on professional and non-professional advocates. Enablers – often inadvertently – advocate for the cognitive distortions and negative behavior of HCPs.
In reviewing numerous cases, it seems clear that High conflict disputes don’t occur without one or more Negative Advocates. This makes sense, because on their own, most High Conflict Personalities lack credibility. Therefore, they seek Negative Advocates to justify their misbehavior and misperceptions, and to assist in blaming others for their life problems – to advocate for them.
Getting it Backwards
Negative Advocates are those family, friends, mental health professionals, and legal professionals who are trying to help, but get it backwards – they adopt or agree with the High Conflict Personality’s backwards thinking. They become persuaded – especially by Cluster B Persuasive Blamers (HCPs) – to focus all of their attention on other people’s alleged misbehavior. They help the HCP to avoid responsibility and to hold others responsible for their own problems and behavior. They agree with and advocate for the High Conflict Personality’s cognitive distortions: their all-or-nothing thinking, emotional reasoning, personalizing events, exaggerating minor (or nonexistent) events and minimizing their own major misbehaviors. Negative Advocates help High Conflict Personalities stay stuck.
Negative Advocates appear to absorb the high intensity emotions of the HCP and often enhance them to a higher level of urgency – they amplify their distorted thinking and join in generating “Emotional Facts.” They have adopted the HCP’s process of emotional reasoning. If family, friends, and professionals would become more skeptical and avoid becoming Negative Advocates, High Conflict disputes would significantly reduce their presence in our legal system.
Betty Broderick (Chapter 1) gives us a good example of blaming and finding enablers. Two years after the murders of Dan and Linda Broderick, the news media reported that she still would not accept any responsibility for her actions. She claimed that Dan and Linda brought on their own deaths: Dan, by “legal bullying” and Linda by having an affair.
Apparently, even 12 years later, she truly believes it was Dan Broderick’s fault she killed him. And, for a while, she convinced many others of this as well – prolonging her case for two years and two juries. One juror from her first trial even stated that he was surprised that Betty “waited so long” before killing Dan because of how he used the legal system against her.
Not only did that juror evaluate her behavior as acceptable behavior, he became a Negative Advocate for her in the deliberation process, amplifying her distorted way of thinking. This is what often happens when an HCP persuades someone. The High Conflict Personality’s emotional drive persuades them there is a crisis, so the Negative Advocate picks up that sense of crisis and also becomes emotional and aggressive in defending the HCP. However, the Negative Advocate usually has more credibility, and therefore is more able to persuade others. It’s the domino theory of Negative Advocates.
In some cases, they are able to persuade many people to become Negative Advocates.
As we saw in the Gossage case, 20 well-respected people advocated for Mr. Gossage and convinced the Bar Court that he had reformed.
“They included his girlfriend and other personal friends, his real estate partner and other business associates, college and law school professors, and prominent public officials. . . Also appearing for Gossage were two attorneys who had represented him in criminal court , one attorney who attended law school with Gossage, one attorney with whom he worked as a student clerk, and one attorney who was his landlord. The foregoing witnesses described Gossage as an honest person who had expressed remorse for killing his sister and for committing drug-related crimes.”
In Re Eben Gossage, On Admission (2000) 23 Cal. 4th 1080, 1092-93; 99 Cal. Rptr. 2d 130.
It appears that his friends didn’t know about his ongoing traffic violations and that he only disclosed 4 out of 17 criminal convictions on his application to become an attorney. Yet their testimony had a powerful impact on the approving Bar Court, which otherwise was unlikely to accept his application. It took the California Supreme Court to see the pattern in his actions, and to look beyond the emotional persuasion.
Jeffrey was able to recruit Marisa in his scheme. She was essential to helping him, and had credibility where he did not – and access to essential information. She thought he was great and defended him to her friends.
She assisted him in bilking her employers, and then she defended him after he was caught – and even after he turned her in.
Perhaps she learned the lesson that blaming others doesn’t work in the long run, and took responsibility herself. A “reformed” Negative Advocate?
Similarities With Substance Abuse
Co-dependents “enable” others to stay sick. They do it in hundreds of different ways, without even realizing it. In fact, they usually think that they are helping, because codependents are helpers. They can be family members, friends, and even professionals.
A codependent will call in sick for the drunken spouse. A codependent will clean up the other’s mess. They “cover” for them. A codependent will tell the children to ignore their father’s or mother’s behavior – or apologize for it. Codependents pretend nothing is wrong. Without codependents, the addicts and alcoholics would have to manage problems directly and develop better coping skills.
Codependents are necessary for dysfunctional people to get by and look okay in our society. Without a codependent covering up and otherwise “enabling” an addict, their behavior would be obvious and consequences unavoidable. Negative Advocates are really Codependents
The Negative Advocate Patterns
When a Negative Advocate supports the cognitive distortions of a High Conflict Personality, the HCP becomes more confident and aggressive – which increases the likelihood that they will get involved in the legal system.
The HCP is encouraged to blame someone else for events that may not even have occurred. “It’s horrible that this happened to you! You should sue them!” That’s what I imagine Mr. Guilbeau heard from those around him – certainly his wife. He sued for harm from a solvent which thousands of others – in fact, everyone else – had used without harm.
Slights from a coworker may be misperceived as harassment. Neighbors may misperceive a theft. Clients may misperceive a professional’s routine actions as a case of malpractice. These events happen every day. But it’s when the High Conflict Personality seeks reality testing from those around him or her, that one becomes a Negative Advocate or Positive Advocate.
A Positive Advocate will empathize with the person, but ask, “Is that really true? What’s your part in all of this? Let’s look into the facts of the situation.” Whereas, a Negative Advocate would ask: “When are you going to sue? Why did you wait so long?” When someone is extremely upset, it’s easier to agree with her to calm her down than it is to challenge her thinking. To pacify her. And High Conflict Personality’s are extremely upset much of the time.
For family and friends who are dealing with a High Conflict Personality on a daily basis, it is particularly hard. In many cases, they have become worn down, and simply accept the cognitive distortions. They become regular Negative Advocates for them – they become Enablers for the High Conflict Personality.
Family members are the primary source of advocates for those with personality disorders. In many cases, they are Positive Advocates who are truly helpful and steer the dysfunctional person into responsible behaviors and set limits on their misbehavior. As with drug addicts and acting out adolescents, it’s a “tough love” approach that seems to work best.
However, there are many examples of Negative Advocates who either have given up fighting, or actually agree with the cognitive distortions and misbehavior of the family member who has a personality disorder.
Mrs. Guilbeau (Chapter 5) appears to have played a highly active role in supporting her husband’s belief system. Even though several professionals had diagnosed him as somaticizing his symptoms and having personality problems, she was a strong proponent of his “illness.”
She appears to be the one who wrote the “DO NOT ENTER” house sign, requiring others to be chemical free around her (smoking) husband: “There is a Toxic person living in this house who is allergic to all these above products. With your understanding, we can help him from having severe seizures and severe multiple pain.” Guilbeau v. Henry Co. (1996) 85 F. 3d 1149, 1155. (Emphasis added)
One expert also testified that Guilbeau “reported that he could smell chemicals coming out of his body at times, and that Mrs. Guilbeau agreed that she could smell them, too;” Id. at 1158. (Emphasis added)
Mrs. Guilbeau was a key witness at the trial and her claim for loss of consortium won $900,000 – before the entire judgment was set aside by the appeals court. One has to wonder if Mr. Guilbeau’s claim would have gone anywhere if it weren’t for his wife advocating, validating, and encouraging his apparently histrionic beliefs.
Family disputes are notorious for recruiting children as Negative Advocates.
Mr. Halo (Chapter 4) began his “custody battle” by influencing his son to tell a therapist that he was scared at his mother’s house. Mr. Halo structured the situation so that there would be no competing information for the therapist and persuaded his son to keep this a secret from his mother. His son became a Negative Advocate for the father. Did he really choose this role?
In their insightful book, Impasses of Divorce: The Dynamics and Resolution of Family Conflict (Johnson & Campbell, 1988) the authors describe some divorcing parents as “enlisting” their children in custody battles, with little awareness of the affect it has on them. Two-fifths of the children in one study tended to “merge” with the angry parent they were with, blocking out the other. Id. at 165. Total compliance is what seems necessary to get an angry parent to calm down, and children are too dependent to oppose a High Conflict Parent.
If adults have difficulty with High Conflict Personalities and they are constantly seeking allies, imagine how hard it must be on a small child. Since HCPs have weak interpersonal boundaries, it is natural for them to “enlist” their child in all of their disputes (neighbor, family, business). Most parents I have worked with are careful to protect children from adult disputes – even those going through divorces, so adamantly involving the children is a special indicator of an HCP.
A common term in High Conflict family court disputes is Parental Alienation. The theory of Parental Alienation evolved to describe cases in which the child totally rejected one parent and totally admired the other – a process that begins primarily between ages 9 and 15. The extreme absoluteness of the child’s opinion appears to be much more an expression of the High Conflict Personality’s point of view than his own fear or anger at the other parent. They are forced to make a choice.
I once represented a father in a custody dispute and the mother brought their 11-year-old daughter to court to testify against him. I observed her sitting down in the lobby of the court at a table with the daughter, going over my client’s most recent court declaration. The mother was standing over her shoulder, shaking her head, and occasionally blurting out “How dare he say that! That’s a lie! You tell the judge!” The daughter then repeated aloud almost the identical expressions of anger and disdain as they continued to read. It was like a student being taught by a teacher – a course in Negative Advocacy.
Later that day, when the judge refused to have the daughter testify, the mother was angry and disappointed. “Well, I brought her all the way down here and she really wants to tell you how mad her father makes her!” She was also firmly admonished that she was not to show the daughter any court papers or to even discuss the court case with her. The child was to be protected from anything having to do with the court. Unfortunately, the mother appeared to have a personality disorder with “enduring patterns” of behavior, so that this admonishment had little effect. Only a change of custody ultimately allowed the daughter the opportunity to truly get to really her father.
Enabling in the Judicial System
A good example of enabling behavior by legal professionals is the many years that the judicial system allowed drunk drivers to avoid responsibility after being arrested. They could “beat a ticket” with a letter from a therapist, or a promise to stop drinking, or convincing the judge that it would hurt the alcoholic’s career. Unfortunately, this process was easily manipulated and hundreds of alcoholics drove drunk again – and many people were killed.
What the judicial system eventually learned was that alcoholics didn’t change by making persuasive promises to act better. Their behavior was embedded in their disease. It would take a program of change to help them. Many alcoholics and addicts were great talkers and could convince others of almost anything. Therefore, the courts developed zero tolerance programs and automatically put drunk drivers into supervised and structured treatment programs, which have been very successful.
Slowly over the past 15 years, society and professionals have stopped enabling drunk drivers to stay sick and required them to get clean and sober. This is one area of great success for the combined efforts of mental health professionals and legal professionals. A similar approach may apply for personality disorders. We do not help them by being Negative Advocates.
Mental Health Professionals
Over the past decade, mental health professionals have come to play a significant role in legal cases. They have evaluated, treated, and managed numerous parties in court cases, from criminal cases to divorces. Their assessments have been invaluable in helping courts determine mental competency for trial, competency for signing wills, ability or lack of ability to form criminal intent, the ability, or lack of ability to parent abused children, and the best interests of a child after divorce.
Yet mental health professionals are generally trained to assist individuals who voluntarily appear for treatment of mental health problems. Therefore, they are often vulnerable to the manipulations of HCPs who don’t want treatment at all, but just want to win their cases – and are willing to lie and manipulate to do so. Mental health professionals sometimes become Negative Advocates, without even realizing it.
Mental health professionals who are drawn into enabling do not understand the process of true repentance and rehabilitation. Both of these processes are preceded by severe depression as the client faces the implications of past behavior. Clinicians are not adequately suspicious of tales of woe, that is, all interactions are “I-nteractions.” That is to say, the unreformed client will carefully omit his or her role in the interactions
An important part of the persuasion of the Bar Court to approve Mr. Gossage’s application to become an attorney was the mental health professionals who evaluated him.
“Five mental health professionals interviewed Gossage shortly before the State Bar Court hearing. These individuals opined that Gossage had successfully overcome any substance abuse problem or personality disorder afflicting him in the pre-1983 period, when he killed his sister and committed other serious crimes. None saw any sign that Gossage presently suffered from a diagnosable mental disorder or psychopathological condition.” (Emphasis added) In Re Eben Gossage, On Admission (2000) 23 Cal. 4th 1080, 1092-93; 99 Cal. Rptr. 2d 130.
Yet, did they know that he had omitted 13 out of 17 criminal convictions on his application? Did they want to believe him? As they looked at each incident, did they interpret it in the most favorable light? Did he persuade them to overlook the pattern of his unchanged behavior? The California Supreme Court criticized the Bar Court for missing the unchanged pattern:
“The majority examined each incident during this period, but did so in isolation, finding excuses or mitigation in each case. However, the majority again omitted and misstated relevant facts, and it never confronted the ominous implications of the pattern of misconduct committed while Gossage was preparing to be a lawyer...” (Italics are the Supreme Court’s) Gossage, supra, at 1094.
From my experience, ASPs in particular are drawn to mental health professionals, perhaps because therapists believe so strongly in the inherent goodness of everyone and are less likely to realize they are being manipulated and purposely deceived. Unfortunately, as I learned in treating addicts – several of whom were also Antisocial – an ASP will lie to and steal from his own mother to get what he wants. They are very effective at acquiring Negative Advocates, and very aggressive about recruiting professionals.
In Chapter 4, Mr. Halo started his case with a secret meeting with a therapist. The therapist never met with the mother, but still wrote a declaration to court for the father. The therapist’s declaration then had a persuasive impact on the Family Court Counselor, who then adopted the therapist’s one-hour viewpoint and recommended changing custody of 11-year old Peter – which the court then approved.
Ironically, almost 18 months later, after a full psychological evaluation, there was nothing found wrong with the parenting at Mr. and Ms. Johnson’s house. The psychologist who thoroughly investigated the matter found no reason to restrict the mother’s or the stepfather’s contact with the children. However, since Peter had spent almost 18 months primarily in the care of Mr. Halo, the psychologist recommended a nearly equal parenting arrangement.
I have seen this pattern many times: a fast and persuasive High Conflict Personality parent starts a custody battle by secretly and individually finding a mental health professional to get the ball rolling. Even the family court judges now complain about therapists doing this. Yet there are still a few unsuspecting therapists who are fooled every year. They become Negative Advocates without even knowing it.
Attorneys often adopt and escalate the allegations of their clients, based on their ethical standards to be zealous advocates. However, they also have an ethical obligation to speak the truth and not knowingly lie. Some attorneys are completely uncritical about their client’s allegations, and never examine the facts or motivations of their clients in making them. High Conflict Personalities thrive on attorneys who agree to be their Negative Advocates – fortunately, a minority of attorneys.
Various attorneys handle High Conflict Personalities in different ways – although they usually do not know they are dealing with a High Conflict Personality. Attorneys have an ethical duty to zealously represent their clients. On the other hand, attorneys are not ethically required to take any client who comes into their office.
What do you do with this client? “I’m really angry. I’m not going to let him get away with having an affair and then paying almost no child and spousal support. I want an attorney who will make him sorry he ever left me. I need an aggressive attorney who will make him jump through so many hoops that he won’t be able to afford to fight with me any longer. I want an attorney who will make him beg me to stop taking him to court. I don’t want to even suggest negotiating with him. He’s like the devil, and you don’t negotiate with the devil. I want lots of hearings, I want a big trial, and I want to pile him up with depositions and having all of his records subpoenaed.”
Many attorneys I know say they would not take this client. They say that’s not how they work and politely encourage him to find another attorney. However, there are a few attorneys in every county who will take this client – and his money – with no question about it. Mr. Litigation would be a good example of this approach. This is essentially what he says:
“Everyone deserves their day in court. That’s what they really want. So I help them have it. I know they won’t be satisfied and I tell them that. Nevertheless, it’s their right under the Constitution, so someone’s got to be their attorney. I’m only doing what they want. I’m representing them as a zealous advocate, like I’m supposed to do. It’s not my job to verify that everything they say is true. That’s the job of the husband’s attorney. Our system of government works best when everybody has someone who will aggressively advocate for their interests and rights in court. That’s all I do.”
A big problem that I see with this approach is that Mr. Litigation will often be zealously advocating for his client’s cognitive distortions and Emotional Facts. That’s why I prefer a “Counselor at Law” approach, which I see as counseling the client to see the situation more clearly and not to make any claims in which I do not have confidence. That’s why I get fired from time to time by a client who wants a Mr. Litigation.
One client fired me because his Wife was getting too comfortable negotiating with me. “Bill, she thinks she can work with you and reach an agreement with compromises from both sides. That’s not what I want. I want her to suffer. I want her to cry before this is all over.” I prepared a Substitution of Attorney form and we gladly went our separate ways. There will always be a Negative Advocate out there for those who really want one.
Since the HCP’s impaired behavior and perceptions may be obvious to others, he seeks a Negative Advocate to replace the ordinary doubts of other’s with the Negative Advocate’s own higher credibility. Negative Advocates excuse the HCP’s negative behaviors – and advocate for (“enable”) their minor, absurd, or nonexistent claims in court. As one Negative Advocate persuades another, the conflict escalates. This encourages the negative thinking and negative behavior of the HCP, and often inspires the Target to become much more active in the case.
As an alternative, those around a High Conflict Personality can truly help. There are many concepts and skills that can be employed in being a Positive Advocate. The next section of this course focuses on what to do – and what not to do – as a Positive Advocate: as a mental health professional in one’s own practice, or in consulting with and advising others involved in legal disputes.
The next four chapters are designed to provide 4 Key Steps in managing any High Conflict Personality in any setting – including resolving legal disputes. These 4 Key Steps also apply to managing those with other mental health problems common in interpersonal disputes today, such as bipolar disorders (formerly known as "manic-depressive"), obsessive-compulsive disorders, and substance abuse. These steps and related skills are applicable to a dispute, whether or not you have developed a Working Theory of a specific personality problem. However, having an idea of which type of personality is involved will help you be more effective. Examples are provided for each of the four High Conflict Personalities discussed in this course.
These 4 Key Steps can be offered to anyone involved in a high conflict disputes, including Advocates (attorney, family member, volunteer), Dispute Resolvers (mediator, judge, ombudsperson), or Targets of Blame (could be anyone). After explaining these steps, five specific skills are provided for implementing each step. At the end of each chapter, separate suggestions are made for Advocates, Dispute Resolvers, and Targets of Blame. For the sake of practical explanation, I often refer to the person with the High Conflict Personality as the “client.”
The 4 Key Steps to consider in handling any High Conflict Personality or upset person are:
People with High Conflict Personalities are in a constant bonding crisis. Their emotions and confusing behavior usually have more to do with their lifetime bonding difficulties than with the facts of their current dispute. In many cases, their bonding crisis behavior is a major cause of the conflict. If you do not understand this and do not manage bonding issues sufficiently, you will be unable to help the person resolve her dispute – and you may risk becoming their next Target of Blame and be attacked verbally or legally yourself. However, it is not hard to handle their bonding issues if you pay attention to the concerns addressed in this chapter.
HCP bonding crises usually stem from early childhood, when bonding may have been difficult or seriously disrupted – one of the factors that can lead to a personality disorder. Through an absence of sufficiently positive bonding experiences, or for other reasons, HCPs develop a generalized mistrust of relationships and have great difficulty coping with relationship losses. Thus, they develop rigid and dysfunctional coping behaviors, which actually perpetuate the very bonding problems they are trying to avoid.
Overcompensating Relationship Styles
HCPs’ difficulties with bonding vary somewhat by personality types, as described below.
Borderlines are preoccupied with fears of abandonment. To feel secure, they overcompensate by being overly friendly, charming and sometimes seductive to get you to like them. If they get a generally positive response back, they will feel more secure – but they also may develop extremely high expectations of the relationship. If their high expectations are not completely fulfilled, then their fears of abandonment are triggered. Sometimes this unleashes an intense rage – much like a 3-year-old's temper tantrum at feelings of abandonment. This anger can lead to dramatic action, such as intense verbal attacks, violence, self-destructive behavior – and legal action.
Narcissists are preoccupied with fears of inferiority. To feel secure, they overcompensate by constantly promoting themselves as superior beings, characterizing their ordinary achievements as extraordinary, and minimizing the successes of others. They constantly devalue people and criticize those "beneath" them. This behavior alienates those around them, who then challenge or criticize the narcissist. This criticism is interpreted as a "narcissistic injury," which triggers their fears of inferiority. They respond with anger or an escalation of demeaning comments or blaming behavior toward the one who “caused” their narcissistic injury or toward whoever is nearby. The drive to prove their superiority may include verbal put-downs, physical abuse, public humiliation – and legal action.
Antisocials are preoccupied with fears of being dominated. To feel secure, they overcompensate by trying to dominate others. They use cunning, lying, stealing, violence, and constant manipulation to feel in control of their relationships. While they may appear exciting, confident, and charming, it is really a manipulation to gain control and to feel unthreatened. They are insincere and are eventually found out, but often after it is too late and their short-term goals (and related harm to others) have been accomplished. They are highly mistrusting. Even when they gain somewhat stable relationships – in which they have the dominant role – they are not satisfied and often leave to seek new conquests.
Histrionics are preoccupied with fears of being ignored. To feel secure, they overcompensate by constantly seeking attention with their dramatic and emotional appeals. Once they have your attention, it is difficult to disengage them. Their anxiety is so strong that it is easy for the listener to just give in and tolerate them, or eventually become forceful in rejecting them. Their dramatic claims are usually unfocused and simply an excuse to hold your attention a bit longer. They push away all but the most tolerant people.
Those with these personalities appear driven to have conflictual relationships, rather than none at all. So be prepared for a roller-coaster ride of anger, manipulation, and conflict.
All of the above have experienced rejection and criticism hundreds of times, so they have refined their initial impression to be more normal and less threatening. Thus, friends and professionals are easily fooled at the beginning of their relationships with HCPs. Just to be safe, I recommend that you use the following methods from the start, to manage the inevitable bonding crises and manipulations without overreacting yourself:
You may know much of the following already. However, with HCPs you will need to pay much more attention to bonding, because they are so sensitive to the slightest indication of rejection, criticism, or abandonment. Be prepared for sudden overreactions to routine events, which will require your active efforts to repair the relationship and calm the HCP’s upset.
Skill #1: Listening to Fear and Anger (Without getting hooked)
If you practice highly attentive listening with HCPs, most of your contacts can be quite brief. Your full attention should include direct eye contact and no distractions. Avoid interrupting with unnecessary questions at the beginning of each contact when they are pouring their hearts out to you. Just listen and empathize for a minute or two. It is possible to be very attentive, even over the phone.
Respond with empathy, including sympathetic
body language (head nods, open body language – avoid closed arms over chest,
for example). Respond with recognition of how the person may be FEELING, such
as "That sounds really difficult." "That sounds
overwhelming." "That sounds really sad."
Avoid agreeing with the CONTENT. Simply take it in as information. "Okay; I hear what you're saying; I understand how strongly you feel about that." (See more below under Validating the Person, Not the Complaint.)
Skill #2: Being Consistent
Maintain a consistent level of contact and emotional support that you can maintain over an extended period of time and in the face of widely swinging HCP emotions. Avoid intense emotional involvement one day and cold distance the next. The more consistent you are, the more secure the HCP will feel. The more abrupt or inconsistent, the more likely the person will feel insecure and escalate clinging behaviors to feel secure (more phone calls, faxes, sudden appearances at the office), or will terminate the relationship in anger and seek some kind of revenge for their perceived slights by you (suing for malpractice, spreading the word about how terrible you are, etc.).
Some family members and professionals have a very warm and friendly style of relating to upset people such as HCPs. Be careful not to get too involved with this, to the extent that you overreact and have to cut the person way back. Instead, be warm but limited in the time and emotional energy you spend on his upsets. Not abrupt, but limited. The person will get used to this and accept it, if it feels consistent and secure.
Other family members and professionals have a more removed style of bonding. This is fine, so long as the expectations of contact are clear. Let the person know how and when you will be available. If there is someone else the person can talk to when she feels in a crisis, let her know that. Otherwise, she will escalate her demands to speak with you.
Being consistent is better than being especially nice and later abandoning the person, which is one of the most common errors in dealing with HCPs.
Skill #3: Anticipating Crises
Because they are so sensitive to bonding insecurities, there will be several bonding crises at the beginning of your relationship with an HCP. Anticipate when these may occur, such as right after they have started working with you; right before and after any court appearance (remember, their expectations are usually unrealistic); and right after dealing with the other party, such as getting served with court papers, responses to settlement offers, or face to face contacts.
Take the First Crisis Call
There is often a crisis call within 24 hours after you have started working with an HCP. This is a test of your commitment – your bond – to the HCP, and will determine how secure he feels for a long time to come. Calmly taking this call as soon as possible – if you can – will save you many hours over the long run. If you brush off your HCP from the start, he will feel compelled to get your attention with increasing phone messages, faxes, escalating demands for action on your part, and possibly threats of action against you.
Skill #4: Adopting an Arm's Length Bond
Just because you develop an attentive relationship with the HCP does not mean that you should be "close." The closer you are, the higher the risk that the HCP will develop extremely high, and possibly intimate, expectations. Therapists describe this as "transference," which can backfire if you let the relationship get too intense. Transference is the term for unconsciously transferring the positive and negative feelings about a prior intense relationship (such as with one’s parents) onto the present relationship – even if it is not supposed to be an intense personal relationship.
Avoid being too responsive to the emotions of the HCP. He will try to convince you about how upsetting the situation is, or that you urgently need to take action in dealing with his perceived crisis. Remaining calm and consistent is the best response. Proceed to take action in a typically professional manner. "Yes, I have already planned to work on that tomorrow." Or, "We will need more information before taking any action on that concern. You can help by gathering some relevant documents for me to review."
Skill #5: Validating the Person, Not the Complaint
Avoid agreeing with the content of what the HCP is saying. Your job, whether you are a family member, friend, or professional, is to support the person, not her complaint. Most high conflict disputes are those in which there are no witnesses and little evidence, so the HCP makes up in emotion what is lacked in facts. It is easy to feel that you must agree with the HCP in order to maintain your bond. This is not true. Your bond is based on your relationship with the person, not the complaint. Many family, friends, and professionals make this mistake, which only escalates the dispute. Gather information and present it to a decision-maker. However, do not get caught having to agree with your client's possible cognitive distortions.
"Yes, I see how upsetting this situation is for you. I will advocate for you, but I can only present information that will seem reliable to others. We need more evidence. I can't just say you feel its true. My credibility with the court is based on facts not emotions. Even if you are completely correct on what happened, it doesn't mean a judge or jury will see it that way. My job is to do my best at presenting the facts of your case. You do not have to persuade me. In fact, we have to consider what the other people will say about you. What do you think they will say? And what facts can we respond with?"
This arms-length approach will reduce your client's focus on emotions, will stabilize your relationship, and will help your client provide information that is more useful. It will also reduce your client's expectations of outside favors and constant attention.
Balanced, Neutral Bonding
When you are in a position of dealing with both parties to a dispute, it is especially important to maintain balanced, neutral bonding with both parties. This applies to family members who are close to both parties in a conflict, as well as professional mediators, evaluators and judges. Practicing all of the methods described above will help in dealing with both parties.
You can be firmly neutral. For example:
"You're both my friends (relatives) and I hope that you are able to resolve your dispute. I'll still care about both of you, but it's better that I do not get involved in trying to decide who's 'right.' "
"My role is to facilitate a resolution, not to evaluate who is right. My focus is on the future, not the past and who is to blame. It's always possible that one of you is really at fault and the other isn't. As a mediator, I do not have the means by which to determine that. So let's focus on finding a solution you can live with in the future, regardless of the truth about the past."
"I am making this decision, knowing that I can never have all the facts. I have tried to be fair and firm in resolving this dispute. I am constrained by certain rules and standards, and this is the result that seems to fit those the best. Best of luck to both of you in all your future endeavors."
When judges use expressions such as the above, it has a very reassuring effect on the parties – even when one or both do not agree with the decision. This fits with the research that indicates that most parties are more concerned about the way they are treated by legal professionals, than with the actual legal outcome of the case. I believe this is especially true of HCPs, who are very sensitive to being criticized, but also immune to negative feedback.
Avoid getting angry at HCPs, even though it is very hard. Since they are unaware of their highly irritating behavior, your anger is usually a complete surprise to them. Therefore, it feels like a rejection or put down, and they will feel compelled to punish you for this in some manner. However, you do not have to be perfect. If you are prepared to repair any perceived breaches of the relationship by effective listening to the HCP's anger and hurt, the HCP will usually respond favorably and recover quickly.
Focus on Strengths
HCPs are often successful people in some areas of their lives. They have developed coping skills and strengths. By acknowledging their strengths, you will have an easier time working with them. We all like a little recognition from time to time. This is especially true for HCPs, who often grew up getting little respect – or respect for the wrong things.
Farrah is a 34-year-old woman who hired Anne Amsterdam to be her divorce attorney. After she left Anne's office, Farrah remembered that she needed to tell Anne about a secret bank account she thought her husband had. She immediately called Anne, but Anne was busy working on the paperwork for a hearing the next day in another case.
“Farrah's a real talker,” Anne thought, so she was afraid the call would take too long. She told her assistant to tell Farrah she was out of the office, figuring she would call her back in a day or two. Farrah wanted to leave a long message, but the assistant cut her off and said Anne would get back to her when she had time.
By now, Farrah was angry at being brushed off. She decided to send a fax to Anne with her information about the secret bank account. This made Anne angry and she dictated an angry fax back. "I have an important hearing tomorrow. Your information is not urgent. Please leave us alone until I contact you when I'm ready to work on your case."
The next day, Farrah showed up at the office wanting urgently to speak with Anne. Since Anne was at court, Farrah waited in the office waiting room, even though the assistant said Anne had a full schedule for the day when she returned from court. Finally, Anne came back and Farrah started to tell her that her husband spent the evening at a bar, which she knew because she followed him there.
Anne was furious, "I don't care where he spent the evening; we don't have an appointment and I'm very busy. I'll call you when I need your information."
By the time Anne and Farrah went to court for their first hearing, there had been several negative interactions. Farrah had sent numerous faxes and called almost every day – and Anne and her assistant brushed her off almost every day.
At court, Anne argued that Farrah's husband was a drunk and had failed to pay the mortgage on the residence where Farrah continued to reside. However, the husband's attorney pulled out documents showing that the husband had paid the mortgage until he started giving money to Farrah for spousal support. The judge concluded Farrah could certainly afford to pay the mortgage herself out of the $2,500 a month her husband gave her in support, the judge said.
Anne was again furious with Farrah after the hearing. "Why did you tell me your husband abandoned the house and didn't pay the mortgage? You made a fool out of both of us at court this morning."
"I forgot when he started to give me money," Farrah said. "I thought it was the next month."
I think you simply lied to me, Anne thought to herself.
A couple weeks later, Farrah fired Anne Amsterdam. However, Anne had done a lot of work on her case by then, and had exceeded Farrah's initial retainer deposit. Anne sent her the bill, and Farrah was instantly angry. She decided to go to Fee Arbitration, under a program run by the County Bar Association, and Anne's fees were reduced. In addition, Anne did not get paid for the time she spent preparing for and attending the Fee Arbitration.
Farrah then found attorney Betty Bailey to take over her case. Betty asked how Farrah felt about working with the prior attorney, to get an idea of any problems that might arise in their new relationship. She got an earful. "That's too bad," Betty said, without criticizing the other attorney. "Sometimes it just doesn't work out."
Betty paid particular attention to Farrah's statement that she felt abandoned by her husband, and then abandoned by her attorney. Given Farrah's intensity on first meeting her, Betty figured she might have some Borderline Personality traits. Best to avoid triggering those abandonment fears from the start, she figured, even if I'm wrong about her.
Betty told Farrah to call anytime and that she valued her information in the case. "After all, you know him better than I ever will." However, if Betty was busy she told Farrah to leave a detailed message with her assistant – or to leave a detailed voice mail message. Even faxes were okay, she said, although it might be a while before she would have a chance to read them – although her assistant would let her know one had arrived. Betty's staff knew not to lie about her being out of the office if she was really there. "If I’m unavailable, just say I'm unavailable – which is true."
When Farrah left Betty's office, she felt much better and decided that Betty would be perfect. Then she remembered that she had not told Betty about the affair her husband had last year. She called Betty's office. Betty was busy working on a hearing she had for the next day, but she took Farrah's call. "I just have a couple minutes, since I'm working on a hearing for tomorrow – just like I will be when I'm working on yours. Tell me what's up." Betty mostly listened for a couple of minutes.
"Okay, well thanks for letting me know about that,” Betty said. “It's not a large issue the court will want to focus on, but it helps me understand how your husband thinks and acts – which is extremely important in handling your case. It may help in negotiations, too. Well, I've got to get back to my paperwork, but feel free to call me or send me any notes you want in writing. In addition, my assistant can take a detailed message. Whatever works best for you."
Farrah felt reassured at how interested Betty was in her case. It was a week before she called again. Moreover, by the time they went to court, Betty had a more thorough understanding of Farrah, as well as of the husband. She predicted that the judge would probably give both sides something, so she advised Farrah not to be surprised or have high expectations. After the hearing, even though Farrah benefited more than her husband did, she was angry at Betty for not telling the judge about the affair. Farrah felt that Betty was not that good after all.
Betty was tired and this irritated her, because of all of the hard work she’d done. But she remembered to mostly listen. Then, "I can understand your frustration. There's a lot I wish I could have said, too. But the judge would have been angry with you and me if I had done that. The judge really doesn't like to hear about misbehavior that doesn't directly relate to the decision to be made."
"But the other attorney said bad things about me," Farrah replied. "You should have defended me and told the judge he's the one who really behaved badly."
"Yes, but don't forget that the judge paid no attention to it. It might feel good for a few seconds, but that's not the way I work. I think you'll agree that it’s better that the two of us take the high road."
Farrah agreed, and did not call for two weeks after that.
While Farrah may or may not have a personality disorder or traits, this gives a simplified example of how an Advocate can better help her client by anticipating bonding crises and dealing with them directly as much as possible. If Farrah really has a personality disorder, especially BPD, she may be very irritating and suddenly angry from time to time throughout the case. By using these simple and brief methods of responding to her, she will calm down more easily. Plan to manage these bonding crises, not to eliminate them. Remember, this is a core issue for HCPs, and does not just fade away.
There are many ways to handle bonding. If you pay substantial attention to this issue from the start, you will avoid major problems in the future.
Advocates: Develop a Balanced Relationship that is not too close or too rejecting.
Dispute Resolvers: Maintain equal respect and recognition of positive characteristics for both parties, even though your recommendations or decision may require one party to have more consequences or more tasks to do than the other.
Clinicians Working with Targets of Blame: Coach the client to avoid overreacting with comments and actions that further escalate the dispute. Coach the client to avoid making concessions just for the sake of bonding, as they may reinforce the HCP’s cognitive distortions that they are to blame.
High Conflict Personalities have difficulty regulating their emotions and controlling their behavior. They will often push your boundaries, ask inappropriate favors, intrude on your time, burden you with new problems, and will resist taking “No” for an answer. They are typically preoccupied with their reactions to their last crisis or interpersonal drama. Their goals usually have more to do with looking good to others or manipulating relationships, than with long-term planning and solving problems.
As a result, they need a great deal of external structure – especially in handling the ongoing tasks (and endless stress) of an ongoing dispute. After addressing bonding concerns, providing structure is the next step in assisting an HCP in the resolution of his or her dispute.
The reason many of these disputes go on for years is a lack of sufficient structure in the HCP’s life. HCPs have a difficult time organizing themselves for letting go, healing loss, and moving on. They usually rely on others to solve interpersonal problems for them. An effective advocate will provide enough structure for the HCP to accomplish many of the tasks in the dispute for themselves, such as compiling documents, doing general research, and organizing information.
Skill #1: Setting Relationship Boundaries, Roles and Expectations
HCPs regularly push the boundaries, partly to find out where the limits are and partly to squeeze more out of the relationship. You need to be gentle, but firm, in establishing your boundaries. Avoid bending the rules, especially your own. This only leads to future blowups and extra time spent on repairing the relationship. You should know that setting boundaries is appropriate and necessary, even though the HCP may not like it. They will complain, but then accept them as long as you remain in a relationship with them.
Throughout your relationship with the HCP, you will want to set clear boundaries about your behavior and the HCP’s behavior. You have already established boundaries about your availability for phone calls and crises, as explained in the previous chapter on Bonding.
Some HCP clients will really push the limits. They may ask you to meet them away from the office or to develop a social relationship with them. This can lead to many kinds of trouble. First, it will create an expectation that you will focus more and more time on them and their case. Second, the HCP client may feel a sense of intimacy with you that would ultimately trigger developing intense feelings of love and/or hatred for you – “transference” from prior intimate and difficult relationships. Some of the worse cases of malpractice start out with a slow erosion of professional boundaries.
Mental health professionals have ethical limitations on their relationships with clients that disallow “dual relationships.” Clients can be reminded of this external rule so that your limit-setting is not seen as a personal rejection, but a standard that controls all therapists.
Frank used to drive his last client, Peggy, home each week after her psychotherapy session with him. She lived on his way home and had difficulty driving at night. They would have minor chitchat on these drives. Then one night she confessed to Frank: “I think I have fallen in love with you. I think you feel the same way I do, don’t you?”
Frank was shocked by this admission and quickly became emotionally distant. By the time they got to her apartment, he told her that she would have to change therapists. He had not intended for her to misunderstand his generosity in driving her home. Sometimes she asked for a hug before she got out of the car and went up to her apartment – and Frank had always reciprocated. This time, when she asked for the hug, Frank withdrew and refused. “It wouldn’t be right,” he said. “Ours is a professional relationship, not a friendship.”
A few days later, Frank was served with a summons for a lawsuit for malpractice. Apparently, Peggy slit her wrists later that night and was rushed to the hospital after she called the police. She was suing Frank for malpractice for causing her such severe emotional distress that she attempted suicide.
Eventually, Frank was found not guilty of malpractice. Most lawsuits against therapists do not result in findings of actual malpractice, but being sued for perceived malpractice or out of anger is a serious risk with HCP clients. The best protection is to begin with clear relationship boundaries.
Attorneys are not forbidden to socialize with their clients, but in cases with potential HCPs, it is to be strongly discouraged. In some cases, a business opportunity will arise and attorneys are cautioned to avoid it or seek consultation from outside counsel regarding the advisability of a business venture with a client.
Mediators are allowed to vary in their boundaries about contact with one or both parties outside of joint mediation sessions. Many mediators do not allow separate contact with the parties, to preserve their neutrality and balance. However, many other mediators do allow separate contact – often called a “caucus.” This can work so long as everyone is very clear about the rules. Separate contacts should be disclosed to the other party, and should not be seen as favoring one or the other in terms of length of time of contact and the setting of the contact (such as by phone or in person).
In general, I have no specific recommendations about separate contacts by mediators. In some cases, a separate caucus may help a client understand other points of view and consider more options for settlement of the case. Many business and government mediators use separate caucuses very effectively.
However, in family disputes and other heated interpersonal conflicts, separate contacts may be inadvisable because the excluded party may worry about a conspiracy between the mediator and the other party. In particular, with HCPs, separate caucuses may heighten their fears (paranoias) that the mediator has taken the other person’s “side” in the dispute. In general, this issue is a matter of the professional’s judgment based on their assessment of the personalities and nature of the case.
The clearer the initial boundaries, the less likelihood there will be serious conflicts later on. However, you can always set a boundary later if the need for it arises, so long as you do it respectfully, to avoid triggering the HCP’s fears of abandonment (BPD), inferiority (NPD), domination (ASPD) or neglect (HPD).
It is common for an HCP to present you with new, unrelated problems that she expects you to solve. This also needs to be addressed in setting boundaries on the relationship. Dispute resolution professionals should always get clear what issues they are responsible to handle and what issues they are not. In most cases, there will be a written agreement regarding services to be rendered and fees for those services. In fact, this is an ethical requirement of all professions, and a legal requirement of attorneys and mental health professionals.
Gary had to move out of his apartment in the middle of his divorce. He called his divorce attorney, Ms. Dewar, in crisis, and asked her if she would sue the apartment owner. In addition, Gary asked if she could help him find another place.
He was so upset – and offended that this could happen to him – that Ms. Dewar reluctantly agreed to meet him in his neighborhood, and to drive him around to look for a new apartment. She decided not to charge him for this assistance. She figured that her moral support and assistance would get him through this crisis more quickly – then he would be able to pay her for the legal work she had done on his case, which had already exceeded her retainer. Or so she thought.
Gary’s expectations of the attorney-client relationship with Ms. Dewar escalated rapidly. He told a friend, “I knew my attorney was the best. She’s helping me find a new apartment. And she’s going to sue my old landlord.”
Then an apartment became available when Ms. Dewar was in court and could not meet with the landlord to review the rental agreement for Gary. By then, he expected she would review any legal documents that he was asked to sign – as his attorney. He became furious and fired her.
Ms. Dewar would have been better off simply empathizing with Gary’s problem and encouraging him to use his own abilities and resources to find an apartment – to set a limit on her attorney-client relationship. Her Fee Agreement should have stated clearly that she was only responsible for handling his divorce in Family Court. She would not have been responsible for suing his landlord, helping him find an apartment, and reviewing his new rental agreement.
It is possible that her Fee Agreement was limited to his divorce, but that she felt sorry for him or wanted to impress him. These are natural feelings, but in the context of a professional relationship, they would be inappropriate to act upon. While many attorneys do favors for friends and clients – often in hopes of future business referrals – this is especially unwise with a potential HCP.
As a Superior Court Mediator, I have handled malpractice cases in which clients sued their attorneys who had allowed the lines to blur between a professional and social relationship. New attorneys are particularly vulnerable to this problem. Structure helps everyone to be clear about the nature and boundaries of the relationship.
Clarifying Expectations and Roles
One of the greatest differences between those with personality disorders and everyone else is their exaggerated expectations. HCP clients often have an extremely grandiose expectation of how their case will turn out. The HCP may anticipate being seen on television or winning a great victory against a despicable public menace. Along with this fantasy will be an enhanced perception of your incredible professional skills. Keep in mind that the HCP usually does not tell you about this fantasy, but simply believes in it.
Alternatively, the client may believe that all professionals are crooks and incompetent. At the first sign of minor difficulty in your case, the client may expect total failure and verbally attack you for it – or simply fire you as a therapist – or a mediator, or an attorney.
An Advocate should predict the range of realistic legal outcomes in advance to prepare your client for the normal progression of a legal case. For example, if the client is prepared for a loss at a hearing, then even a minor victory can be very satisfying. If the client is not prepared, even an insignificant procedural setback can be the basis for a major verbal attack or being fired.
It is also helpful to predict realistic ups and downs in the relationship between professional and client. By suggesting that there will times that you are not readily available or that the client may feel critical of your work, it makes it easier for both of you to cope. Sometimes it is helpful to predict that the client will feel angry with you and that this is part of any normal working relationship. Therapists generally do this, and it is all “grist for the mill” of analysis in the patient-psychotherapist relationship. Nevertheless, many attorneys – and mediators – pay little attention to these potential relationship issues until after they arise. It is better, and safer, to plan ahead with potential HCPs.
Since you are going to be working together, it is important to clarify what each person’s role is in the professional-client relationship. One of the largest areas of concern will be each person’s role in decision-making. The client, of course, makes the final decisions about most aspects of a legal case, including whether to accept a settlement or go to court. While an attorney may ethically make the decisions about much of the strategy and procedures of the case, with HCPs it is important to share almost every decision. This is because any decision that turns out poorly will be blamed on the attorney if the client did not participate in making it. It is much easier to say that “we” misjudged an aspect of the case, than it is to admit that you alone made a decision about which the client is very upset.
Courts have a very difficult time with HCPs concerning expectations, because they expect a clear-cut procedure – just like they see on television. HCPs have exaggerated fantasies about court: “There were be finality.” “It won’t take long.” “You can bring a surprise witness.” And many more myths. In reality: Court can drag on for years. Surprise witnesses are rarely allowed. The final outcome is often muddy or even the opposite of what you would expect. Subsequent motions or appeals can undo a prior successful decision. Big, clear-cut victories are rare.
In reality, court procedures take a long time, are confusing, boring, inconsistent, frequently delayed, and may appear irrational to those who do not know the history. Judges who patiently explain these procedures to the parties help in calming anxiety and reducing conflict. However, there is a limit to how much time the judge has for explanations. It is much better for parties and their attorneys (or other Advocates) to research and discuss the realities of court procedures prior to hearing or trial.
Skill #2: Choosing Your Battles
HCPs are constantly reacting to minor conflicts and misperceptions in their daily lives. Many events – especially in legal disputes – are frightening and confusing to them. One of the greatest gifts you can give the HCP is permission to skip a battle. It is usually a relief, although it may initially be hard for him to understand. There just is not the time, energy, or money to fight everything that is wrong in the world. In addition, HCPs generally feel like they have to prove that they are okay at every turn in a dispute, so it can be very helpful to say that this or that issue is not about them but about something insignificant.
When there is a serious legal dispute going on, you cannot really succeed if you are fighting too many battles on too many fronts. You will become too scattered to deal with anything productively – and the emotional tension will become overwhelming. You need to limit your goals and focus your energies. This goes for the Advocate as well as for the client. Be a role model of planning, not just reacting.
In many cases, choosing your battles involves making a clear and simple explanation to the client about the significance of each issue in the larger case, and then jointly making a choice of issues about which to fight. Sometimes settlement on a weak or minor issue helps free up time to work on a stronger or major issue.
Skill #3: Containing Emotions
In family therapy and in mediation, it is common for professionals to open up emotional issues to see where the barriers are in resolving an impasse. Many ordinary interpersonal disputes are simply stuck on hurt feelings, miscommunications, unintended offenses, and cultural misunderstandings. By asking how each person feels about a subject, the air can be cleared and the impasse resolved. Once the emotional issues are clarified, the mechanics of the surface issue may be easily resolved. This is one of the most helpful aspects of conjoint family therapy and mediation with both parties present.
With HCPs, however, the opposite approach is better. You generally do not want to intentionally open up emotions. HCPs have great difficulty managing their emotions and a very low tolerance for hearing the emotions of others.
It is often best to briefly acknowledge feelings, and then focus away from them. This lets the person know that she has been heard, but that the probing of their feelings is not on the agenda. This is especially important in mediation cases. When the mediator acknowledges their feelings, they don’t need to fight to get attention for these feelings. Once they know that you understand how they feel, their level of tension often reduces without further discussion.
Many of these parties are relieved to avoid focusing on emotions, because they feel so emotionally vulnerable to the other person. In general, in potential cases of HCPs, I avoid giving an opening for them to vent emotions. This is also my standard approach in Divorce Mediation, because – even though most mediation clients are not HCPs – the emotional issues run so deep that they will rarely be “resolved” in their lifetimes.
For example, “I understand that you both are feeling frustrated and angry. In particular, Mary seems to have felt ignored and Carl seems to have felt attacked. Recognizing these feelings, I would like to move on to your proposals for how to resolve this dispute. Let me explain how we make proposals in this mediation process. It’s a method called brainstorming. Anyone can make a proposal and we don’t evaluate it until we have made a full list. Who wants to start with a proposal?”
By getting emotions off the agenda, they are able to focus on true problem-solving. Of course, I know that emotions will arise, and I will acknowledge them and again return to problem-solving.
In some cases, the following explanation helps: “From over here where I’m sitting, I can see that you are both hurting and feeling misunderstood. Of course, each of you is feeling that you’re the one getting the short end of the stick. That’s very common, although you can’t see it from where you’re sitting. In addition, I know that you each really want the other person to empathize with you right now – but I don’t think that’s possible in this stressful setting or at this stressful time in your lives. Maybe after this is all resolved you’ll be able to tell each other ‘Gee, I do understand how upset you were with me. I was being a jerk then and I’m sorry.’ However, this rarely happens and you shouldn’t expect it. Get your support and understanding from your friends and family right now. We all need all the support we can get.”
Then quickly move on to problem-solving.
But Shouldn’t I Let Them Vent a Little Anger?
Dispute resolution professionals hear a lot of anger. Most are trained to ignore it and focus on the unresolved problem underlying the anger. It is true that we often let people vent to us in the privacy of our own offices, when there is no one else around to be bothered by it. And, with our healthy friends and relatives, a little venting does not seem to hurt.
But what about when the other person – the Target of the anger – is present in a joint counseling or mediation session? Decades ago, family therapists learned that simply allowing people to yell at each other or hit each other with foam bats did not work. It may have given a brief sense of relief to the upset person, but then the recipient of the venting felt so bad that problem-solving could not take place. It is clear today that dispute resolvers should discourage or actively intervene when parties are simply venting anger at each other.
This is especially true with HCPs. For example, most chronic domestic violence abusers are HCPs, and domestic violence treatment programs specifically do not teach venting of anger. Instead, they teach skills for preventing the buildup of anger, changing their cognitive distortions, and improving communication and problem-solving skills.
In the case of HCPs, it is especially important to prevent the venting of anger in joint sessions because their egos are so fragile. This can include joint negotiation sessions with attorneys, as well as joint mediation sessions. They may not look fragile at all. But remember that HCPs take negative feedback much more personally than most people do. They just cannot handle it. They will feel compelled to respond and retaliate in some manner. Therefore, it is best to contain emotional outbursts of anger as much as possible. Be prepared to protect them from themselves. They may thank you for it.
It is also good to avoid venting your own anger at HCPs, even though they are very frustrating and self-sabotaging and you really want to get their attention. In reality, venting your frustration at your client will backfire, as the HCP client will feel the need to convince you that you are wrong to criticize them. They will respond with verbal counterattacks, firing you, or even – in extreme cases – stalking or assaulting you.
Skill #4: Focusing on Tasks
Since focusing on emotions is usually discouraged with HCPs, focusing them on tasks is the solution. Since HCPs generally have escalated anxiety and heightened energy,
It is not enough to tell them what not to do – you need to give them something else to do instead.
Focusing on tasks may be very difficult for them in some cases, so a lot of repetition by the professional may be necessary. In other cases, the client may be eager to have something to do and will volunteer for more and more tasks. In either case, this helps the client focus their energy and feel good about their contribution toward resolving their dispute.
Attorneys can assign tasks to their HCP client (actually all clients benefit by this) such as gathering documents, doing some research, and preparing notes for declarations or other necessary documents. With HCPs, however, you should make sure to mention that you cannot guarantee you will use every piece of information they provide, but that you will use as much as is appropriate when the proper time comes. Often, the client can be very helpful in the case by providing you with this assistance - so it is not just a technique for handling a difficult client.
In many of my mediations, I have also found that the best response to emotional venting is to focus on clear-cut tasks, as the following example demonstrates.
In a very heated divorce mediation, Fran consistently tried to move the discussion to Jim’s alleged financial irresponsibility – even when that was not the issue we were working on – and Jim was easily triggered to respond. We were working on dividing the furniture, which is rarely a problem in most of my divorce mediations, because the parties are usually able to divide those items on their own.
Fran: “Jim, I can’t believe that you’re getting away with wasting all our money on your cars. What did we need all of those old cars for anyway. None of them really run.”
Me: “Forgive me if I’m wrong, but I believe you both had decided to focus on dividing up the furniture now, is that correct?”
Jim: “That’s right. I don’t think its fair that Fran gets to keep changing the subject. Can’t you control her any better than that?”
Me: “So then, do you both agree that we’re focusing on the furniture for now. Fran?”
Fran: “Oh, okay.”
Me: “Okay, let’s look at these lists you both made up.”
Fran: “His list is so offensive. I can’t even look at it. Can you believe that he put the dresser I got from my grandmother on the list? After all the money he wasted on his cars?”
Me: “Let’s stay focused here. One approach some people use is to make a joint list together, with four columns for Wife’s separate property, Husband’s separate property, and for community property that’s being assigned to each of you. What do you think? That way we don’t have to fight over whose list we’re using.”
Jim: “Sounds good to me.”
Fran: “Of course it would. Look how he agrees with you Bill. Are you on his side?”
Me: “I’m not on any side. That’s just one approach that some people have used. I can give you some other suggestions if you want. Or do you have another suggestion for how we should proceed?”
Fran: “No. Let’s just do the four columns. And my grandmother’s dresser goes in mine. Right, Jim?”
Jim: “Yeah. Sure. I never said it wouldn’t.”
Me: “Great. An agreement. What’s the next item we should put on our list?”
And on and on. Eventually, all of the furniture was divided. By focusing on a piece of paper that they both helped generate, they got into the routine of making progress. While this mediation took several sessions, they eventually reached a full agreement on all issues.
Incidentally, I generally consider it an error for the mediator to make just one suggestion – as I did in the example above. When you do that, the party who does not like it identifies the mediator with the suggestion. It is better to make more than one suggestion, so that the rejection of a suggestion does not mean rejecting the credibility of the mediator. In the above case, I backed out of it successfully. Part of the beauty of mediation is that you can make corrections as you go along.
For mental health professionals involved in legal disputes, it helps to have the client work on getting some of the relevant legal documents. Assigning this task to the client may help him feel more in control. However, make sure he is not leaving out any information you really need to know. For example, if you are counseling a child of a divorcing couple, whether or not state laws require it, it is often preferable to get both parents’ consent. If one parent says she has the sole right to sign up a child for counseling, make sure to get a good copy of the most recent court order on this issue.
When a mental health professional is performing a court-ordered evaluation, it helps the client to feel that he is participating by obtaining letters and other useful information that may help in his case. Otherwise, the client feels like a passive victim of a legal process beyond his control or influence.
Skill #5: Managing the Negative Advocates
Cases involving HCPs often involve one or more Negative Advocates. At first, this may seem to be a nuisance to the professional and a drain on your time. However, the wise professional will develop some relationship with family members who indicate they want to be involved. When a client with a personality disorder is involved, family members can be very helpful – or family members can sabotage your hard work. Establishing a positive relationship with a potentially sabotaging relative may help resolve the dispute.
Generally, the best approach with family members is to involve them in positive tasks in the case. Just as with client, you can ask family members to gather information, to propose lists of people or resources to investigate, and to provide you with suggestions for arguments and insights into the case. Use as much of their information as you can. By working with the family, they are less likely to be working against you.
If family members have come to your office with the HCP or contacted you separately, this means that they want to be involved. One of the most helpful things they can provide is information about your client, information about the case that has brought the client to you, and information about the other parties to the case. Family members are often helpful in providing some background on the problems that have escalated into a legal dispute.
With the permission of your client, interview each family member who wants to be involved. Your client can be present or not, depending on his wishes. Remember, you do not want to take steps that alienate your client, but instead develop a sense of a team working together to solve legal problems.
I have described the positive roles family members can play in managing your client. You are very fortunate if this occurs. In many cases, the opposite is the problem. There is a higher incidence of personality disorders in families where one or more other members also have a personality disorder. These cases can be extremely difficult, but generally, they can be managed.
Developing a Working Theory for High Conflict Personalities in family members should, by now, be fairly easy. Remember to look for rigid thinking, impulsive or other troublesome behavior, intense emotions, and excessive demands for attention. You can use the same methods to structure the relationship and counsel the family members as you would for clients, as described in this course.
Remember how important it is to bond with those with High Conflict Personalities from the start of the case. At the same time, remember the importance of setting limits and keeping expectations within reason. These apply to bonding and structuring with the Advocates in the case as well.
By providing the structure that one or more parties may lack in a legal dispute, you may have a less-prolonged case and a more positive outcome. HCPs and their Negative Advocates often encourage the escalation of disputes (sometimes unconsciously, sometimes on purpose) – not to resolve the dispute, but rather to have an emotional outlet and an opportunity to blame others and validate their cognitive distortions. Assist your clients in resisting the urge to emotionally respond to each allegation and insult. You and your clients will reduce stress and possibly reduce the costs of a dispute by adding as much structure as you can.
Advocates: Acknowledge the emotions of the client (whether an HCP or a Target), then focus on tasks they can do. This may require a lot of gentle repetition. Avoid escalating the dispute with emotional attacks or by raising unrealistic expectations.
Dispute Resolvers: Be firm about containing emotions and focusing on solutions. Limit the parties’ expression of anger and allegations. Give them tasks that require them to contribute to the solution of the problem. Limit venting.
Clinicians Working with Targets of Blame: Coach the client to show cooperation in being solution focused and in providing verifiable information. Help the client analyze the real dispute and focus the client’s energy on obtaining information and witnesses in support of the truth. Coach the client to avoid becoming preoccupied with irrelevant misbehaviors and unimportant details, however upsetting they may be.
Most of those with High Conflict Personalities can only tolerate one view of reality – their own. Their feelings become facts – to them. They will try to persuade you of the “truth” of their one reality and escalate their emotions until you agree with them. Rather than recognizing that everyone has their own view of reality – and that a successful society requires peaceful coexistence – they will see your point of view as a personal betrayal and/or dangerous threat. They truly do not see their own cognitive distortions, especially in a high conflict dispute.
Most people know that their cognitive distortions are a fact of life and check things out. (“Am I overreacting here?” “Is it really as bad as it feels? I’ll get another opinion.”). Unfortunately, HCPs believe their cognitive distortions are true and, therefore, do not absorb new information. It puts them in a highly distressed state of internal conflict, because they cannot see the distortions that are causing the difficulties in their lives. Instead of seeking more realistic information, they fight off contradictory information and seek to convince others that their cognitive distortions are true! They try to persuade others to adopt their distorted reality.
The following five skills are often helpful in dealing with reality testing for HCPs.
Skill #1: Maintaining a Healthy Skepticism (Keeping an Open Mind)
More high conflict disputes are unnecessarily escalated by the lack of healthy skepticism than for any other reason, from my observations over the last three decades. Advocates, Dispute Resolvers, Clinicians, and even Targets of Blame have accepted as true the misinformation of an HCP. This is why so many high conflict disputes start out backwards in the courts (blaming an innocent Target for minor, absurd, or nonexistent events based on cognitive distortions) and take such a long time to eventually resolve – because the burden is on the Target to “prove” that the initial decision was a wrong decision. Of course, the HCP becomes desperately defensive about their perceptions and vigorously defends their cognitive distortions. The apparent equality of points of view pushes the dispute higher and higher.
The HCP produces escalating emotions and increasingly dramatic “Emotional Facts” (which are false but require thorough legal examination), while the Target becomes motivated to produce more and more true factual information. The case spirals upward as each fact is trumped by another emotional fact, then each emotional fact is trumped by a true fact.
For legal professionals all of this could be avoided by maintaining a healthy skepticism: “Is that really true? What evidence do you have for that now?” are questions that should be asked from the start in a legal dispute – or any dispute. Claims that seem to require immediate action often receive a blanket presumption: “We better be safe and award the restraining order.” “We better be safe and change custody.” Yet it is often the power of these emergency, unquestioned “to be safe” orders which fans the flames and escalates the conflict – and the use of the court’s time over the next several months or years – when a little more fact-finding at the start without presumptions would separate the true from the false.
It would be better if there were more reality-testing of the initial claim, based on a higher level of skepticism, before granting emergency temporary orders. Temporary restraining orders, residence “kick-out” orders, change of custody orders, control of funds and similar orders are commonly brought by HCPs because of their cognitive distortions – and they often win at the beginning of the case in a hearing that only lasts a few minutes. Then, it may be months or years before a full hearing or trial is heard, which often leads to the conclusion that the initial order was based on inaccurate information. Some courts are trying to deal with this, but have much further to go.
Clinicians, however, can address this problem of reality testing in a nonconfrontational manner, by focusing repeatedly on the facts of every reported situation, and not being satisfied with vague responses.
Therapists, attorneys, family members and the courts are all gullible at times. This is especially true when a likable, but upset person is in front of us making dramatic claims that appear to need our immediate action. As human beings, the natural tendency is to help out – and therapists, judges and the majority of attorneys are sincere people who like to help others as a profession. However, we could be more wary than we are. I like to approach each claim as equally likely to be true or not true. This helps keep me from jumping to conclusions.
With a mental health background, these cases seem clearer to me in terms of interpersonal dynamics than they do to many others. More training for all professionals – and more skepticism for family members as well – would go a long way toward reducing the escalation of some of these unnecessarily high conflict disputes. They tend to be much more factual disputes than legal disputes. Recognizing personality types helps recognize what type of cognitive distortions are occurring in the generation of false “emotional facts.”
If the “facts” presented weigh heavily on the theme of “he abandoned me,” then it may be a Borderline misperceiving or getting revenge. If the “facts” emphasize “she’s trying to control me,” then it may be an Antisocial who feels dominated and is overcompensating by trying to dominate back. In these cases, the Advocates and Dispute Resolvers need to ask detailed questions right away, before the HCP develops a cover story that sounds more credible with more and more “emotional facts.”
“How did he abandon you? Tell me in detail.” Or, “How is she controlling you? Is that really control?” By asking these questions, you can get a better idea if it is a case of cognitive distortions or reality. And even if a party was abandoned or controlled, this does not mean an emergency is created. By focusing more immediately on detailed facts, the “emotional facts” often fall apart, while the true facts come into sharper focus. Thus, a dispute can be better controlled and never escalate into a high conflict case or even go to court.
Advocates and Dispute Resolvers need to be far more skeptical from the start with HCPs. Once the case progresses, they must still maintain this healthy skepticism. It is tempting to assume that we have enough facts to reach a clear conclusion, but we never have all the facts. I think it is best to never be more than 95% certain that anything is as we think it is in high conflict disputes.
In some cases, the most important facts come much later on and may contradict everything we previously thought. If we do not let in this new information, then we are essentially operating on cognitive distortions ourselves. Yet it is very hard to accept that we were wrong or misled. It is not uncommon for cases to end based on inaccurate information – or remain incorrect for a long time – because Advocates and Dispute Resolvers were unwilling to accept new information. It is best to examine each new piece of contradictory information and weigh its ability to more accurately explain the case.
A common danger in high conflict disputes is for Dispute Resolvers to become rigid advocates for their decisions after they have made up their minds. Psychologists have studied the difficulties they have in changing their minds after making a determination. Yet they believe that this openness is important.
It also helps the parties to know that Advocates and Dispute Resolvers can admit that they will never know exactly what happened. Otherwise, they lose credibility with the parties, who know much more about the dispute. Lecturing someone with certainty about her private life is always a risky venture. A decision can still be made and action taken, while still keeping an open mind – forever.
Skill #2: Recognizing Cognitive Distortions
The following are five of the most common cognitive distortions in high conflict disputes and their dynamics in court cases, from my observations from many cases:
This occurs when someone feels that something is true, and therefore believes it is actually a fact – “emotional facts.” For example, a wife felt that her husband cut off the utilities and telephone when he moved out of the residence in a divorce. In fact, the husband had informed her that he would no longer pay the utilities and phone bill at the residence after he started paying the wife Child and Spousal Support. The wife in this case was particularly sensitive to feeling abandoned, and would get tearful about the concept that the husband had “cut off” the utilities and phone service. In fact, he was able to use utility bills and phone bills to show that he had kept paying them until a month after Support payments had begun.
She “felt” abandoned; therefore, she believed that she actually was “abandoned.” Her emotions became “emotional facts.” Unfortunately, in a court of law, the husband had to prove that he had not “cut off” the utilities and phone, as a factual issue. Much of what occurs in court today in hotly contested interpersonal disputes are similar cognitive distortions giving the appearance of factual conflicts.
It is very common for those who commit Domestic Violence, Child Abuse, Sexual Abuse, and many other forms of misconduct to minimize what they have done. In their own minds, the perpetrators of such behavior have really not caused any harm. Instead, they believe that they have an insignificant effect on the victims of their misconduct.
Many people in court in interpersonal disputes minimize their own behavior and exaggerate the other party’s behavior. In fact, many of these disputes are over behavior that is similarly inappropriate, but does not rise to the level that requires court intervention. We especially see this in many divorce cases.
On the other hand, someone may be a true victim of another’s misconduct and truly need court intervention. However, legal professionals may minimize the problem as they attribute it simply to a difficult personality. This is an area that requires careful, discriminating assessment, rather than quick and easy assumptions – which are often wrong.
The opposite of minimization is exaggeration or “maximization,” or what some people call “Catastrophizing.” Many cases in court include some or a lot of catastrophizing. For example, a husband went to court to get a restraining order against his ex wife, because she sent him angry faxes and emails. He was seeking a court order that the wife be required to communicate respectfully with him, rather than her occasional four-letter word in these forms of correspondence. He wanted her instead to be ordered to speak with him by phone to discuss parenting of the children.
At court it came out that the husband had left at least one angry voice mail message for the wife in which he also used a four-letter word. The husband had minimized his own behavior and maximized or exaggerated the wife’s behavior. The end result was that the court ordered them not to communicate by phone, fax, or email, but instead by a correspondence book, which they would exchange at visitation exchanges. This is not at all what the husband wanted, because he wanted an order that she talk nicely with him because he wanted to have more contact, not less, with his ex-wife. He truly couldn’t see that he was minimizing his own behavior and exaggerating hers.
This distortion occurs when a person takes personally an event that has little or nothing to do with him or her. An example might be the person who is driving in traffic when another car suddenly cuts right in front of him. An HCP may feel offended that the other driver had the nerve to get in his “space.” The HCP may feel the need to take revenge and use certain gestures with the other driver or use threatening vehicular behavior. However, the other driver may have simply not seen or noticed the presence of the car when he or she changed lanes.
Personalization is especially common with Narcissistic Personality, because they feel so easily injured by other people’s benign behavior.
Mental health professionals treat cognitive distortions with self-training techniques to help the individual reality test their own “automatic negative thoughts.” Such thoughts simply pop into our heads and happen to all of us. However, HCPs have them occur constantly and they are more likely to absolutely believe these distortions rather than to routinely consider that they are inaccurate.
Most mental health professionals are very familiar with the defense mechanism known as projection, but most other professionals are not. You can describe to legal professionals and others that projection is simply the unconscious process of seeing in others what is really going on inside oneself. For example, a person may feel very angry with someone she loves, but not feel safe to get angry because she is so dependent on the person she loves.
Someone with a personality disorder related to childhood abandonment may project that anger outward and believe that it is the other person who is angry. Then, the HCP may engage in clinging behavior, which actually pushes the other person away. Then, the HCP may feel the abandonment she so feared – thereby reenacting the conflicts of her childhood, rather than changing her own dysfunctional behavior.
Another HCP may feel sexually frustrated, but be unaware of this feeling. Instead, the HCP may get angry with his partner and believe the partner is having an affair. Then the HCP may beat up his partner out of jealousy and fear, when all along it was the HCP’s own projection onto his partner. This is a common scenario in domestic violence cases, which often involve HCPs.
Since the HCP cannot see his own role in interpersonal problems, he must blame the other person for whatever problems exist. In some cases, the HCP is not aware that the person is actually acting appropriately or only slightly inappropriately – because he feels so strongly inside himself that the other person is to blame. In other cases, he may know the other person is not guilty of his allegations against that person, but he feels so angry about the relationship that he feels justified in harming the other person anyway.
This tendency to blame others often leads HCPs to seek the assistance of others in building a case against the other party. This often includes family members and friends, and may eventually lead to the involvement of attorneys, mediators, and/or therapists. The intensity of the HCP’s concerns can easily persuade legal professionals, and even the courts, that the HCP’s allegations are true – even when the opposite situation may actually be true: that the HCP was the perpetrator and the other person was the victim of the HCP’s projections and unwarranted blame.
It is fascinating to see how many legal disputes include an HCP projecting his or her own behavior onto an innocent party. I have seen this in many domestic violence cases. The victim of the abuse is accused of doing what the perpetrator is actually doing.
For example, an aggressive man may accuse a passive woman of aggressive behavior. In one case, the man claimed that the woman threw cans of food and pots and pans at him in the kitchen. It was ultimately revealed that it was the man who was throwing things at the woman. With true “projection,” the man may actually come to believe that the woman was doing it to him and that it was not he who was throwing these objects. However, in other cases it is a simple lie, which will be discussed below.
Skill #3: Suspecting Lying
Lying is a very difficult issue for the courts. The structure of the court process appears to encourage lying more than it discovers lying. Even though declarations are made “ Under penalty of perjury” and testimony is made after being sworn to “tell the truth and nothing but the truth”, in reality there is little enforcement for perjury. Instead, the decision makers simply focus on the substance of the case, and do not mete out special penalties for lying. For example, in most criminal trials the defendant takes a “not guilty” position. Then, the jury decides whom to believe. At the outcome of the case, the defendant is found guilty or not guilty, but is rarely held accountable for lying.
There is a great problem in determining lying with HCPs. This is because in many cases they believe that they are telling the truth, when in fact it is such a distortion of the truth that it is completely false. For the HCP, it may simply be a cognitive distortion.
However, there are cases where people knowingly lie. I have found in going to court, that this is one of the ways in which a HCP can be handled. As an advocate for a client, challenging his statements in the office with true information may help reduce the conflict. If they know that their statements will backfire in court and reflect poorly on them, they may back off from pursuing action in court that is inappropriate.
Confronting lies with true information is one of the most effective tools in handling a HCP who is an opponent in a court process. In fact, it often helps bring the party to negotiations and out-of-court settlements of a dispute. When people ask me how they can explain an HCP to a Judge or a Jury, I suggest that they obtain substantial evidence of lying behavior which is so common for HCPs and helps reduce their desire to litigate. By exposing any lie, it helps to reduce credibility of other statements of the HCP.
For example, at a court hearing over custody, a father argued that the parenting evaluator had not stated that the parties’ son expressed the wish to live with the mother. At the same hearing, the mother stated that the parenting evaluator did, in fact say that the boy wanted to live with her. At that point in the process, the Judge said, “Then we shall hear from the parenting evaluator.”
The parenting evaluator worked for Family Court Services and was in the court building. Therefore, within 20 minutes the parenting evaluator was in court and testified. The parenting evaluator stated that “Yes, I did say the boy wanted to live with his mother.” Thus, the father’s false claim that the evaluator had not made this statement was exposed. He immediately lost his credibility with the court, and the Judge found in the mother’s favor.
Skill #4: Learning the Legal Realities (and Eliminating the Fantasies)
So many high conflict disputes include one or two parties who have a fantasy view of the law. It may be that they are expecting a total vindication or validation in court. They may be expecting their “day in court.” In reality, the law is rarely so simple. Their attorney may be telling him what they want to hear. It is very important that the parties to the dispute get objective legal information very early in the case. Clinicians should warn their clients about the realities of court proceedings versus their hopes.
For example, I have seen many family court cases in which there are two attorneys who are advising their client with opposite information on key issues, such as spousal support. One attorney may say that spousal support will be generous and last a long time. The other attorney may say that there will be no spousal support at all. He could spend many months or years and tens of thousands of dollars pursuing these beliefs, without knowing the legal standards for people in similar circumstances. Therefore, learning the law realistically would cut short many high conflict disputes-once the fantasy is burst.
Most high conflict disputes that reach the trial level that I have seen include one or more parties with a personality disorder or severe traits. They are the only people who seem to believe that the courts are a clear-cut process and that absolute victory is possible. In reality, court is often unpredictable, frequently delayed, and does not go as anyone planned or expected at the beginning.
Skill #5: Finding Evidence by Personality Type
HCPs operate in rigid patterns of behavior. Therefore, they are often predictable in terms of the trail of evidence they may have left during the course of their lives.
Borderline Personalities: Many “vexatious litigants” are actually borderlines who are easily enraged at interpersonal events. “Hell hath no fury like a [borderline] scorned.” For example, a borderline woman may sue a Doctor or Lawyer because he did not respond to her “crisis call” fast enough. Another example is the borderline man who has a history of domestic violence in relationships.
Therefore, in looking for evidence when there is a party who appears to be a BP, it helps to see if there is a history of legal actions with the same pattern of behavior. Another source is those in prior relationships with a borderline, who may have information about domestic violence or other borderline interpersonal anger. Remember, they experience “enduring patterns” of behavior from early in their lives, so it is very likely that there is a history out there somewhere.
This is especially helpful for cases in which the HCP refuses to negotiate and insists on going to court. In many cases, this aggressive and adversarial behavior has been repeated over and over again. As the saying goes, “those who live in glass houses shouldn’t throw stones.” Ironically, HCPs generally live in “glass houses” but because of their distortions, projections, and outright false statements, they believe that they will not have their own lives looked at. If one has to go to court, then historical information may be quite helpful.
Narcissistic Personalities: Narcissists have a lifetime history of offending people, because they show so much disrespect and demeaning behavior. Looking for a history of this behavior in a prior interpersonal and employment context, may be productive. However, be prepared to run into brick walls, because those from the past may not want to deal with him or her ever again. Remember, when such a person feels a “narcissistic injury” they may sue again. For that reason, a good place to start is a search of prior lawsuits.
Antisocial Personalities: Antisocials are the most rewarding in terms of finding a history. Remember that antisocials are social rule breakers, even of the smallest types. For example, some psychologists recommend looking for traffic records for even minor offenses. As we saw with the case of Mr. Gossage in the first chapter of this course, those identified as possible antisocial personalities may have a history of traffic tickets that have never been paid, and minor traffic violations, for which the person has not attended a hearing. It is not uncommon for Antisocials to blatantly lie and say they have no such history, when it is available in open public records.
You may wonder why such persons would lie about information that could so easily be discovered. Once again we go back to the old saying “People who live in glass houses shouldn’t throw stones.” People with these personality disorders can’t seem to reflect on their own behavior. Therefore, they truly do not recognize that they are living in a “glass house.”
The main idea here is that in dealing with a personality disordered or maladaptive traits, you need to look inside their glass house. While this may sound aggressive and unsympathetic, we do no good to the HCP to allow them to continue to throw stones. Just as in tough love approaches to treating alcoholics and addicts, those with personality disorders need to be confronted with their own behavior, and the courts need to be informed of the truth if the HCP insists on going to court.
Histrionic Personalities: These personalities have similar histories as described above with the other HCPs. It is not uncommon for them to completely fabricate dramatic information. Therefore, doing some research on each of their dramatic stories may produce some powerful contradictions.
In many cases the HP has not lied or fabricated, but simply burned out those before them. Talking to those who have gone before in dealing with such persons will lend insight in how to deal with them in the future. While this may or may not reveal evidence that would be used in court, it may reveal personality-based behavior that may be helpful in forcing the person to negotiate or otherwise resolving the dispute out of court.
Reality testing is a key issue for HCPs, and using the above skills may be crucial to resolving the dispute. When disputes are eventually resolved, it is usually because of sufficient reality testing. Allowing parties to go to court without testing their facts and fantasies does a disservice to the party, to the court, and to society.
Advocates: Avoid agreeing with the content of the person’s complaint before investigating it. Jointly examine the facts and gather evidence with open minds. Admit that we will never know everything and that we all make mistakes of perception sometimes.
Dispute Resolvers: Be aware of Emotional Facts and Peripheral Persuasion. HCPs are often more convincing about false information than a Target will be about the truth. Ask “Is that really true” right when dramatic allegations are raised, so they do not become absorbed.
Clinicians Working with Targets of Blame: Coach client to be assertive about searching for evidence and presenting it to Dispute Resolvers. Coach the client on the consequences of holding back negative, but true, information about their accuser. There are a number of reasons Targets of Blame may hold back such information, such as their bonded relationship or their own narcissism and resulting feelings of humiliation. Clinicians should be alert to any cognitive distortions by the Target of Blame.
Persons with personality disorders have enduring patterns of behavior. Therefore, it takes strong consequences to change their behavior. Any well-intentioned lectures and the routine negative feedback of their dysfunctional daily lives have no lasting impact on their behavior and may alienate them.
Consequences need to be logical – directly connected to solving the problem. If the problem is a chronically abusive behavior, then part of the consequence would be requiring changing that behavior – as well as further consequences if the abusive behavior happens again. This is the principle of diversion programs for drug-related crimes and domestic violence.
If the problem is misperceptions and false allegations, then there needs to be psychological treatment and legal/financial consequences if it happens again. Of course, if the problem is very dangerous behavior that is repeated (murder, rape), then they may need life in prison without parole because it is enduring in their personality. However, most of today’s legal disputes involve two or more people who will remain in society. Society needs them to resolve their own internal problems so they can avoid repeating their high conflict behavior – and the social resources it consumes.
Just as consequences motivate alcoholics and addicts into recovery, HCPs need strong and structured consequences. A program of change – not just a promise or order to change – is necessary to produce real and lasting new behaviors. Such a program of change usually includes repeated small consequences to help these changes take place. Only when a person takes responsibility for changing his or her own thinking and own behavior will any meaningful resolution of the dispute occur. In some cases both parties may need consequences to change and resolve the dispute, while in other cases just one person’s misbehavior is driving the legal dispute. Clinicians should remember that all clients need empathy for their feelings first. HCP clients can be prepared for the realities of court ordered consequences. Targets of Blame clients can be encouraged to persist in the face of the HCP’s diversionary tactics and to realize that insisting that the HCP experience the court ordered consequence is of greatest importance.
Skill #1: Mandating Cognitive-Behavioral Counseling
Cognitive and Behavioral methods have been widely used in mental health treatment over the past two decades. They are practical and effective in long-term change, including for some of those with personality disorders and traits. Requiring such counseling may be the best thing the legal professional could ever do for their client in a high conflict legal dispute.
Cognitive therapy: Since those with personality disorders do not reflect on their own behavior, they use litigation as an opportunity to attack and blame the other party. Mental health professionals can encourage attorneys and/or courts to require a counseling step before a high conflict dispute is allowed to be heard by the court, just as mediation is a required step in most states in custody and visitation disputes.
Even one session of counseling with a properly trained therapist could be very helpful. There could be a focus on examining one’s motivations in going to court, one’s fantasies about what to expect, and alternatives for handling one’s emotions (especially fear and anger). The courts could require specific lessons to be learned and issues to be resolved.
For example, there are several core cognitive distortions which many people share who go to court for personality-based reasons. They could be required to address these distortions in counseling prior to going to court, in order to focus on the legal issues and screen out the personality-based cognitive distortions:
NEGATIVE THOUGHTS and NEW POSITIVE THOUGHTS
It’s all someone else’s fault. It’s usually everyone’s fault to some degree. One person may bear more responsibility in this dispute, but you are fully responsible for your life and your part (however small) in this dispute.
There’s only one point of view (mine!). There’s always two or more points of view, and we can reasonably differ.
I deserve my day in court. Court is not like on TV and can be very boring and dissatisfying. It’s not about you, but a narrow legal issue. It would be better to have “your day” with support persons or a therapist.
There’s only one solution (mine!). There are usually several solutions. By creating more solutions, you may be able to save money and both sides may be able to “win” something.
I will be vindicated in my beliefs. Even if you win, you will rarely feel totally satisfied. The horrible statements made about both parties, the narrow basis of the decisions, and the cost are rarely worth the minor vindication you might receive – especially after several years.
I’ve explained this process of challenging cognitive distortions, so that you can see how beneficial it can be to anyone involved in a court case. It may be especially helpful for HCPs in reducing their defensiveness and frustration, which is often what is actually driving the legal dispute. Some of the conflict comes from his or her own thoughts, not from the other person’s behavior.
Many high conflict cases are driven by an HCP’s constant negative thoughts that she has to prove something to someone else – just to feel okay about herself. That’s not a feeling that will change in court – in fact, it usually is triggered more and more during the court process. Instead, it is more easily dealt with in counseling, with methods such as cognitive therapy.
Behavioral problems are the focus of today’s legal disputes. In cases where there is chronic misbehavior, it is common to seek court orders punishing this misbehavior. If you know of a program that would be helpful for treatment of such misbehavior, focus on that in the legal case, such as a Drug Treatment Program or Domestic Violence Batterer’s Treatment Program. Perhaps there can be an agreement that the person will enroll in that program, which will avoid the necessity of an embarrassing trial and the risk of being court-ordered into treatment afterward.
The true goal in a case of serious misbehavior is behavior change. Most prisoners get out someday. Most guilty parties in civil disputes never go to jail. Therefore, it is in everyone’s best interest that the individual make actual changes in his or her ongoing behavior. This requires a program of change. This is the most appropriate consequence for inappropriate behavior.
In short, cognitive and behavioral counseling is an appropriate consequence for anyone involved in a high conflict legal dispute. Even if the person is a true victim of another’s misbehavior, that person needs to explore how they got into the situation and what life choices they can make to avoid such situations in the future. This applies to most of those going through a high conflict divorce, regardless of how badly the other person may have acted.
“I am ordering you to participate in 6 months of individual or group counseling with a qualified mental health professional, so you can identify your contribution to the problems of this legal dispute. You are to address your own thinking and behavior; learn to identify self-sabotaging thoughts and behaviors; learn skills for changing those thoughts and behaviors; and be able to describe how the other person(s) may feel and think in this dispute.”
The above could be a very helpful court order in a protracted divorce, interpersonal injury case, or extended neighbor dispute. However, this does not have to be a court order. It could be a family requirement for a particularly upset family member who is headed for court. Alternatively, an attorney with a client in a high conflict dispute could require it – even if it is not primarily that client’s fault. It may help him or her cope, and limit the damage of the legal dispute.
Even if it is not court-ordered, the clinician treating the HCP can suggest that the court’s concerns are that everyone understands their own contribution to the dispute. This means addressing thinking and behavior, self-sabotaging thoughts and behaviors, and learning skills for changing those thoughts and behaviors. Additionally, the court wants each individual to understand his impact on the other party, and how the other party feels and thinks.
Skill #2: Considering Court Action
In our society, we look to the courts for the strongest consequences for misbehavior: large fines, jail time, even the death penalty. In many cases, simply the threat of going to court is sufficient to get someone’s attention and motivate them to change – or refrain from – certain behaviors.
Unfortunately, this can also be abused. It’s more often HCPs who say, “I’ll see you in court,” as a bullying tactic – because HCPs are more likely to use extremes for problem-solving and have more of a fantasy of court as vindication or validation. It is important to know that it is unethical for an attorney to threaten someone with a lawsuit.
On the other hand, once you are involved in a lawsuit of one sort or another, it is helpful to know that those with HCP personality disorders or traits are usually very preoccupied with their public image. You can threaten them with exposure of certain information, with requests for large fines, or even jail time. They do not like to have their private behavior ruin their “public persona” and they do not like to have to pay extra money for misbehaving.
Therefore, if a legal case has already been commenced, it is an effective technique to threaten to seek monetary consequences and to threaten to expose delicate information – so long as this is true. Even though the court may not make the orders you are requesting, the threat of it will often get the HCP to act more appropriately for at least the duration of the trial.
As an attorney in an active case, I may threaten to expose lies in their statements that I can prove are false. I may send the information in a letter or court declaration, along with the suggestion that we settle this out of court.
Filing a counter suit is very common in legal cases. HCPs truly do not see that you have as strong or stronger a claim against them, as they are claiming against you. Remember, HCPs often throw stones without realizing that they live in “glass houses.” It helps to threaten them with exposure of their glass house of vulnerability, and they may agree to settle or drop their lawsuit. However, in many cases they do not, even when it would be beneficial to them.
Filing a request for sanctions may be very appropriate. Sanctions are generally having the court order a misbehaving party to pay the other party’s attorney’s fees. Even though the courts don’t like to give sanctions, I have found that requesting sanctions often inspires more appropriate behavior. Even if the court does not order sanctions, the threat makes it clear that I will not tolerate the unnecessarily litigious behavior of the other party. It keeps them on their toes. I may get the sanctions next time, so they are usually more cautious in the future.
People say it is not good to threaten consequences that you can’t enforce. However, with HCPs, the threat is taken very seriously because it challenges their shaky self-image. They don’t even want to risk that you will expose a weakness in this image. If you put damaging information that is true before the court, they will angrily deny it – but they will also know that you are no longer going to “enable” them to remain unexposed.
I have had to do this in many family court cases where I suggested we settle out of court. After the other party – usually an HCP – insists on going to court with exaggerations, absurd claims, or completely false allegations, I do not hold back in exposing their true history and contradictory statements. Many of my clients are “codependents” who have been walking on eggshells for years around an HCP. If we have to go to court, it is no time to keep secrets and “protect” the HCP from the information that gets to the truth.
I have represented clients – both men and women – who were physically abused for years, but who refused to allow me to disclose the truth of this history of abuse. Since the court never heard the full truth, the other party – the abuser – gained confidence in making up stories which sounded plausible. The result has been that my clients have been blamed for behavior they did not do, they have lost time with children when they were the better parent, and have even lost out on financial issues they should have won.
Without the threat of exposure and possible court consequences, HCPs escalate their stories in court with confidence they won’t be found out. I believe that counselors should generally advise their clients to be as assertive as the HCP is aggressive in presenting the full – even ugly – story. Of course, this is a last resort. But if they won’t settle – and they often don’t – then the whole story comes out and there may be consequences – court consequences.
Skill #3: Obtaining Court Sanctions
While many people would like to see HCPs put in jail for their aggressive and often abusive use of the court system, this is extremely rare. It is rarely worth pursuing in interpersonal disputes, since even lying is not punished by sending people to jail.
Likewise, many people ask about filing for contempt of court orders, since HCPs violate court orders so often. This is also not realistic. Since Contempt of Court is essentially a criminal action – even if it is heard in a family court – the judges do not like to deal with it. It requires stricter courtroom procedures and is potentially punishable by up to five days in jail (in California) for each violation of a court order.
However, sanctions exist under all areas of the law. They are usually an order for one party to pay the other party’s attorney’s fees as a consequence for litigation misbehavior. While they are not easy to get, this is usually easy to submit a request to the court. It can be in regard to any amount of money. Even a small amount of money sanctions can have a powerful impact.
In California, Family Code Section 271 states:
“[T]he court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”
I have sought and received sanctions, although rarely. In 2003, I obtained $10,000 for a client who was falsely accused of child sexual abuse and the court found that it was knowingly false allegations. I don’t seek sanctions unless it is a true case of misconduct. Otherwise, I would lose credibility with the court and the opposing attorney. The question is usually the extent of the misconduct (does it really merit sanctions) and the actions of the client (did he engage in any misconduct which may cancel out sanctions against the other party).
Mr. Persistent brought motions before the court almost annually to obtain custody of his son, when the mother was doing fine as the custodial parent. Mr. Persistent had been previously found to have committed domestic violence against the mother and was ordered into a 52-week Batterer’s Treatment Program. He was eventually sanctioned $3000 for repeatedly bringing hearings to court for a change of child custody.
At the end of one of the earlier hearings, the judge had lectured both parents for being a high conflict case. However, the mother’s attorney had submitted a Memorandum of Points and Authorities suggesting that the father had traits of an Antisocial Personality.
The Judge said, “I read the papers on antisocial personality, but I frankly don’t see that it has any relevance here.” The mother’s attorney replied, “It’s just that such a personality won’t respond to lectures and nothing is likely to change without strong consequences. But thank you for reading it.”
It was at the following hearing a year later that the judge imposed the sanctions. Perhaps he had reread the Points and Authorities and considered the idea that consequences were needed rather than another lecture.
After that, the case remained out of court longer than ever before.
Skill #4: Crafting Orders with Future Consequences
With HCPs, they view a court order as invalid on its face – because it doesn’t fit within their one view of reality. If the judge didn’t agree with their position, then the judge must be wrong. If the judge punished them, then the judge must be really mean and ignorant. The idea that the HCP is wrong is inconceivable to the HCP.
Therefore, following the court’s orders may feel like an intrusion on the HCP’s thinking – and an insult. HCPs often do everything in their power to avoid following the court’s orders. On the other hand, if there are court consequences, then the HCP will have to be careful. The result is that the HCP will only violate the court order in ways which can be argued are following the court order – so that there will be no punishment or other consequence.
Antisocials are particularly skilled at – and often obsessed with –- manipulating this fine line. If they view the court order as a victory for the other party, then they will feel dominated and feel like they have to violate the order to maintain their sense of identity as a person who is in control.
The net result of this is that court orders regarding possible HCPs must be written very specifically and must have very specific consequences. The future consequences could be monetary fines – as in the case of Mr. Persistent. The consequences could be a reduction in parenting contact. In extremely rare cases, the consequence could be jail or prison.
Mental health professionals can advise Dispute Resolvers to ask the parties involved what the consequences should be in the event of future misconduct. If they participate in determining the consequences, then they are much more likely to accept the order and not need the consequences. They will at first deny that they would ever violate the court orders – although the HCP knows he or she intends to violate them. Therefore, if they deny any risk of violation, simply ask them what they think the penalty should be.
I have done this in divorce mediations involving an addict or alcoholic. I have helped the parties spell out in detail what will happen concerning custody and visitation if a parent has a drug or alcohol relapse. There are different consequences for a brief “therapeutic” relapse and an ongoing relapse. With everyone participating in creating the consequences, we rarely need to implement them.
Skill #5: Terminating the Relationship
Many therapists, attorneys and other advocates quickly burn out on trying to help those with High Conflict Personalities. Once they realize how odd or difficult the HCP is, they want to escape as soon as possible. In a sense, they decide that a logical consequence of the HCP’s bad behavior is to end the relationship. But – be careful!
There is the temptation to abruptly cut off the relationship, but there is much danger in this. Remember, HCPs are in a constant bonding crisis. Now you will be treated as those before you.
Some HCPs will become verbally attacking, follow you, or even assault you. We already know from many news headlines that terminating an employee needs to be done carefully. This is also true for advocate-client relationships.
First, it may not be necessary to terminate the relationship as a consequence for their difficult behavior. You can set limits, and then let the client know that terminating the relationship is a possibility if there are problems in the future. Most HCPs will try to behave with you – at least for a short period – because you are one of their strongest advocates and they don’t want to lose you.
They need to know what your rules are, or else they will feel surprised and betrayed if you seem to have unfairly rejected them. After a brief period of time working with them, you will have a good idea about how they handle losses – from how they’re handling the losses of prior relationships in court. Did they verbally attack their prior advocates? Did they follow them, or assault them? Did they sue them? Well, get ready because it could be your turn next.
If you have to terminate the relationship, make sure you are ready before you do it. Have your paperwork in order, in case you are subpoenaed. Have a termination conversation that is empathetic and blames the termination on something other than the client’s personality. You may truly be too busy to handle a case with all of the needs of her case. The law may make her case difficult. Just try to avoid a direct criticism of the person, because she really is delicate, even though they may appear to be just the opposite. Also, be firm: don’t leave the door open to vague contact in the future, unless you can handle it. Connect with whomever she may be transferred. Don’t leave her stranded and then ignore her calls. An ignored HCP client is a client getting ready to sue.
It is not uncommon for an HCP client to suddenly want to terminate his relationship with you. Avoid resisting this sudden rejection. It’s probably a blessing in disguise. Tell him that’s fine, and that you simply want the best for him – whomever they work with. Don’t try to convince him not to leave. Actually, it’s best to agree with him that it may be best to have a fresh start.
Avoid apologizing for anything big once you are at this point. If things didn’t go well between the two of you, it’s best to blame it on external circumstances than to blame yourself with major apologies. The risk of such major apologies is that the client will come to believe that you did do something wrong and that the outcome (if he doesn’t like it) is all your fault. Don’t give this impression, because it’s not usually true. Remember, they tend to hear what they want to hear – and blame is easy for them.
On the other hand, social etiquette apologies (“sorry I was late”) are fine and may be helpful to the client feeling that you are sensitive to how she or he must feel. If circumstances warrant, sometimes giving a small fee reduction helps ease the emotions involved in a termination with an angry, disappointed HCP client. Your sensitivity now may save you a lot of difficulty later on. Take the time to handle this situation well.
Consequences are necessary and complicated with High Conflict Personalities. This is an area where therapists and mediators have little power, but can be instrumental in designing the consequences. Attorneys and courts, however, have a great deal of potential power in obtaining and enforcing consequences. The more information shared between the professions in this regard, the more effectively consequences can be used. This is one of the most exciting things about the collaboration of the different professions in legal disputes: rather than just punishing HCPs and seeing their dysfunctional behavior repeat and repeat, we can actually help people change for the better.
Advocates: Family and professionals can require counseling as part of their ongoing relationship. If the HCP will not get counseling, then you will have to work much, much harder. This is true, whether your client is an HCP or a Target.
Dispute Resolvers: You can recommend or order counseling, but be clear on whether individual or group programs are best for a specific party. Avoid lectures, unless you have a strong bond with the client. Threaten and use financial consequences to produce real change. Detailed orders and follow-up are necessary with HCPs.
Clinicians Working with Targets of Blame: Explore with the Targets of Blame the conditions necessary for an HCP to consider improving their behavior, such as very specific court orders or legal agreements for behavior change.
There are at least four specific and distinct roles increasingly available to mental health professionals in legal disputes involving High Conflict Personalities. However, each role also has several predictable risks when those with these personalities are involved. The next five chapters highlight these opportunities and risks. These chapters focus on the key issues related to High Conflict Personalities in these various roles.
These course materials are not a comprehensive treatment of the personal and legal risks to mental health professionals in these roles. Instead, these chapters highlight the key dynamics when High Conflict Personalities are involved. For a comprehensive treatment of legal and ethical issues for those in these roles, please see the courses available under Law and Ethics. In addition, this course does not address the role of Mediator, which is also a growing role of interest for mental health professionals and the subject of other continuing education courses – but less likely to be involved with high conflict cases at this time.
These four distinct roles in High Conflict Personality cases include:
Most of us became mental health professionals to assist clients in their efforts to deal with mental health problems or with personal growth desires. Becoming involved with the legal system has traditionally not been a desired role. Therefore, we are most likely to find ourselves in the role of a confidential psychotherapist with a client who becomes (often reluctantly) involved in a legal dispute: a divorce, a civil lawsuit, a criminal charge, or as a relative of someone involved in a legal case who wants to help. On the other hand, we may receive a client who wants assistance while he or she goes through litigation – a case preparing to be decided in court.
Providing effective psychotherapy to those involved in legal disputes is a new and needed area of practice. As an author with two books about High Conflict Personalities, I am constantly receiving phone calls and emails from around the country asking for referrals to therapists and attorneys in other cities and states, who understand the dynamics of high conflict cases.
There are several areas of expertise one can develop. One can promote these to legal professionals and other mental health professionals. Attorneys and judges tend to favor those professionals they know, because they are quite skeptical of mental health professionals and (surprisingly) psychology in general. It is not uncommon for other attorneys to ask me about the reputation of a certain mental health professional, or to ask me for a local referral to handle a highly specific type of client on a confidential basis.
Opportunities and risks coexist in these cases. There are three areas of particular interest and concern that will be addressed in this chapter:
The court process can be highly stressful for those who become involved in it, whether “defending” themselves or initiating a lawsuit. The client may have a High Conflict Personality or be someone who is coping with and defending against a High Conflict Personality on the other side of the case. The therapist does not need to form a specific diagnosis to take the approach suggested here. It is equally effective for those on either side of a legal dispute – a Persuasive Blamer or a Target (or both).
It can be very helpful to provide a supportive approach to the client throughout the roller coaster process of litigation. Helping the client process his or her feelings in a neutral and confidential setting can reassure the client – and save the client thousands of dollars in misplaced anger and fear during litigation.
It helps to find out how the court process works, so that you can help your client predict typical frustrations and confusing procedures. Helping your client identify inaccurate expectations of court may be invaluable in their decisions to fight, settle, or proceed with caution in their legal decisions.
Helping the client choose her battles with a High Conflict Personality often takes several sessions – or the duration of the litigation – with a nurturing and knowledgeable therapist. Many Blamers and Targets are constantly reacting to each event in their legal cases, unable to discriminate between what is highly significant and what is actually legally irrelevant.
Your client Jane is going through a high conflict divorce with a narcissistic husband (your working theory, since you may not diagnose someone you have never met) who finds something wrong with everything she does – and does not hesitate to point these out to her. They have hotly disputed issues regarding custody and visitation. She has just received a copy of a letter to her attorney from the other party’s attorney (commonly known as the “opposing counsel”). In the letter, the opposing counsel states that Jane is alienating the children from her husband by showing them court papers. Jane feels devastated by this letter and wants her attorney to send an angry letter back defending Jane and setting the other attorney straight that she would never do such a thing. She has been very careful not to discuss the court case with the children and she has never showed them court papers – because at the beginning of the case you informed her that is one of the worst things to do.
As Jane’s therapist, what would you recommend? Should she pressure her attorney to send such a letter? Should she discourage her from asking her attorney to send such a letter? Should you help her explore her own actions, in case she has done something that might have triggered this letter? Did she inadvertently show the children papers that looked like court papers? How would you help her process this issue?
In reality, such a letter from an attorney is usually irrelevant and insignificant in terms of the overall case. Attorneys frequently send such letters to please their angry clients, and this letter may be such an example. Sending an angry letter back will usually not change the opposing counsel’s mind, as the other attorney is merely advocating for his or her own client and is not the decision-maker in the case. It may even escalate an unnecessary battle of defensive letters back and forth.
On the other hand, a declaration filed with the court would generally need a response so that the decision-maker (usually the judge, as there rarely are juries in divorce cases in most states) knows what the facts are. It is generally very important to provide a detailed declaration explaining what exactly occurred and explaining that Jane has been careful not to discuss the case with the children – an issue she can explain she discussed with her therapist at the beginning of the case.
As a therapist, you can help her process her feelings and help her develop questions to ask her attorney. You can tell her generally what you know about how the legal system works, and possibly give the explanation I have provided in the previous two paragraphs. However, you should avoid telling her what legal action to take. Instead, encourage her to discuss with her attorney whether this letter creates a battle that should be engaged – or ignored. Assist her in her relationship with the attorney, don’t try to replace or supersede that relationship.
You can help Jane deal with her feelings about her attorney. Often clients have some complaints about their attorney, in terms of not returning phone calls, not caring enough, not understanding her case, not being aggressive enough, or being too aggressive and unnecessarily escalating the case. You can help Jane process those feelings and help her examine whether there is a serious problem in how the attorney is handling her case, or if these are normal and manageable problems. You might suggest how she could assertively communicate with her attorney, to reduce any defensiveness in their relationship. However, you should avoid telling her to change attorneys or not to change attorneys. This is a common temptation for mental health professionals, but a risky one. Instead, if you are concerned, you might suggest that Jane get a second opinion from another attorney before making any decisions.
Avoid Supporting a “Victim”
A common error that many therapists make in high conflict disputes is to validate a client’s every complaint and share a totally negative and disparaging view of the other party. Mental health professionals know this unconscious process as “splitting,” and it is frequently and inadvertently reinforced in the heat of a legal battle.
It is tempting, but not helpful, for mental health professionals to become focused on supporting their client’s negative thinking and projections related to court, without even realizing it. It is easy to go for months and months empathizing with a client’s anger toward their abusive spouse, without some corroboration that it is really true. From my experience, I recommend that therapists take a more active and questioning role with HCPs. Questions such as, “Is that really true?” or, “What’s your part in all of this?” may be too confrontational for many HCP clients. It may work better to focus on the facts of every experience they relate, i.e., the behavioral facts of both parties from beginning to end, saying to the client, “Describe the behavior to me, step by step.”
Being a “victim” in therapy is a very comfortable role to play. It just doesn’t help clients to make their own needed changes to move forward in their lives. Even true victims need to make changes. Otherwise, they will repeat the pattern in a new situation with new spouses, coworkers, and so forth.
While the above should seem simple and obvious, it is frequently forgotten when high conflict personalities are involved. I have seen numerous cases escalated unnecessarily when well-meaning therapists have “joined” with their clients in viewing another party as “all bad,” even though the therapist has never even met the other party. On the other hand, I have seen true victims of a high conflict personality remain stuck because their therapists became preoccupied with simply validating the client’s helpless feelings. “Don’t worry; it’s not your fault.” That may be true, but it does not help to stop there, and many therapists become stuck in this stage when their clients are defending against or otherwise coping with a litigant with a High Conflict Personality. This is understandable, but not sufficient to effectively assist such a client.
In many high conflict legal cases (perhaps most), one party is stuck in the anger stage of the 5-stage Grief Process, described by Elizabeth Kubler-Ross in her classic book, On Death and Dying. Anger is just one of the stages on the way to Acceptance. If a person is stuck in the anger stage, he or she will not heal and recover from the loss that triggered the grief process. It may be a divorce, loss of a job, loss of money, and so forth.
In court, all of the anger is allowed to be repeatedly directed outward at the other party and the person may lose track of the need to feel sad and get empathy from others. Instead, she gets caught up in feeling angry and having people agree with her anger, rather than nurturing her sadness as well. Persons with personality disorders have an inability to move through the grieving process on their own and need a lot of redirection to focus on their own feelings of vulnerability and sadness, while forming new bonds. Court allows them to stay stuck.
With true spousal abuse, for example, the victim is better served by focusing on grieving and making personal cognitive and behavioral changes, rather than just venting and getting support for remaining an angry or helpless victim. That is why I recommend that counseling be very specific for HCPs – especially to assist them in reflecting on their own thoughts, feelings, and behavior. Understandably, this is extremely difficult for them to do, because one of the key problems of their personalities is an inability to reflect on their own behavior and an inability to grieve. They need help learning how to do address these essential human needs.
Specific treatment goals
Effective treatment related to legal disputes might include:
Specific treatment methods that would be generally appropriate:
Treatments not recommended
Individual therapy that only empathizes with a client’s complaints of being a victim, without corroborating the truth of the complaint and without helping the client make personal changes. When a clinician validates the client’s complaints, it serves to reinforce the client’s cognitive distortions. He will avoid dealing with their own role in their life problems and be doomed to repeat them. Again, a focus on the facts of their experiences is the most helpful.
In short, cognitive and behavioral counseling is appropriate for anyone involved in a high conflict legal dispute. Even if the person is a true victim of another’s misbehavior, that person needs to explore how they got into the situation and what life choices she can make to avoid such situations in the future. This applies to most of those going through a high conflict divorce, regardless of how badly the other person may have acted.
Therapy could be voluntarily sought or it could be a family requirement for a particularly upset family member who is headed for court. Or it could be required by an attorney with a client in a high conflict dispute – even if it is not primarily that client’s fault. It may help him cope and limit the damage of the legal dispute.
Promoting one’s skills and understanding of how to work with clients in legal disputes can be a growing area of your practice. You can promote yourself to attorneys, other therapists, the courts, court-related staff, and mediators. Use your networking skills to find professionals who are involved in your local court system and send them flyers, make a phone call, or invite them out to lunch. In San Diego, we have an Attorney-Therapist Luncheon every other month, which includes attorneys, mediators, judges, and therapists interested in divorce and related cases. Perhaps you can set something like that up in your area through your own professional organization.
Suppose you have a parent with an upset child in your office, who wants your assistance in a divorce case against the other parent. If the parent and/or child seem very upset, you may really want to help protect him from the other harmful parent. However, this situation can present a minefield of problems. Can you treat the child without the other parent’s consent? Should you write a declaration to court about the other parent’s behavior, if you haven’t met the other parent? Or if you have met the parent?
Consent for Child Treatment
In California, either parent of a married couple can legally sign a child up for counseling. However, after separation or divorce, the court will make orders about legal custody. In the majority of cases, the court awards joint legal custody. In doing so, the court specifies the circumstances under which the consent of both parents is required... Family Code 3083. In many cases, this includes educational and healthcare decisions, which generally include mental health care.
Thus, therapists should review the court’s orders regarding legal custody before commencing therapy with a child or family therapy that includes the child. To be safe, it is good practice (legally and therapeutically) to simply get both parents’ signed consent before treatment begins.
Meeting the Other Parent
While there is not a legal requirement that a therapist meet with both parents in order to provide services to a child, it is a very good idea in divorce cases.
The level of conflict reinforces negative perceptions of the other that may be exaggerated or completely untrue. Meeting with the other parent puts the emphasis on joint problem-solving and future behavior, rather than blame and past behavior.
The more neutral a therapist can be, the more likely the therapist can help the family, rather than being viewed as an advocate for one side.
Declarations for Court about a Parent You Have Not Met
Surprisingly, therapists still write declarations to Family Court about a parent they never met. They state that the un-met parent is unfit, abusive, an addict, and so forth, based solely on the reports of the other parent or the child. They recommend that the unmet parent should not have custody, should have supervised visitation, etc. This is improper and unethical in most cases. There are strict standards for those who evaluate and make court recommendations.
Case example: Years ago I was the attorney for a father of a 4-year-old in a Family Court visitation dispute. The other attorney sent me a handwritten declaration from someone representing himself to be a “forensic psychologist” (I had never heard of him before or after that), stating that my client should have restricted visitation. Apparently, the mother and child went to this therapist for one session and persuaded him to rush out a declaration that stated that the father forced the child to eat spaghetti she had thrown up at his house. Based on this allegation, the “forensic psychologist” wrote his recommendation. I was able to get the case referred to a parenting evaluator who met with both parties, found no basis for the allegation, and recommended a normal plan. This very unethical “recommendation” is not typical of the psychologists I know who are forensic psychologists.
Case Example: I represented a mother of a 9-year-old who had custody without complaint for 4 years. After she requested an increase in child support, the father took the child to a therapist, who wrote a declaration after only one session. While the therapist had never met the mother, she stated she believed every word the son told her in the father’s presence. She stated that life was a living hell in the mother’s house. Based primarily on her statements, the court ordered a change of custody. It took a year and a Psychological Evaluation of both parents to determine that the allegations were unsupported. However, a shared custody plan was ordered, because the children had adjusted to the father’s home by then.
Declarations for Court about Sessions with Both Parents
One parent cannot authorize the release of information regarding the other parent’s participation in therapy sessions. Each person has his or her own right to keep information confidential under the Psychotherapist-Patient Privilege in Evidence Code 1014.
If one parent signs a release, the therapist can only disclose information obtained from that parent. You can describe behavior and issues for that parent, but not for anyone else who has not authorized the release of their information. You can reveal what the releasing party has said in a conjoint session, but you can’t say anything about the other person, not even that he was there.
If you want to help a client, you might consider writing a declaration that is limited to her own behavior and treatment compliance B in behavioral terms with concrete examples. Better yet, tell your client to have the Family Court Counselor call you and don’t put anything in writing. When in doubt, consult an attorney.
As a private confidential therapist, your relationship with your client has many legal protections, depending on the laws of your state. In general, the client holds the “privilege” to release information, not the therapist. In the case of children, the parents usually hold that privilege. However, in high conflict legal disputes, especially divorce cases, it is not uncommon for someone else to hold the privilege – such as an attorney for the minor child.
This case is a true example of the risks involved in breaching the duty of confidentiality in a High Conflict case.
The parents divorced five years ago. The mother was briefly a client of a therapist, who we shall call Dr. Jones. But then she began bringing her daughter, age 7. The father had custody, but he agreed to the therapy and also met Dr. Jones. The child met with the therapist to discuss various mild issues, including occasional bedwetting and a vague incident of sexual touching with her brother who was a year older. Over the course of a year, the therapy was unremarkable. The parents took turns bringing the daughter, and then both children to Dr. Jones.
Then the mother remarried. Suddenly, there were financial demands and numerous complaints by the mother against the father. The mother filed a motion for a change of custody, claiming that the children wanted to live with her and that the father didn’t communicate enough about school activities, doctor visits, etc.
Then, while the parents were in custody mediation at the family court, the mother raised – for the first time ever – that the daughter told her that the father sexually touched her while she was sleeping. The court counselor reported this to Child Protective Services and the court changed custody immediately to the mother while an investigation could proceed. A separate psychologist was appointed to perform a Psychological Evaluation, which proceeded over the next six months. An attorney for the children was also appointed, to represent their interests.
Throughout this period, the mother continued to bring the daughter to see Dr. Jones in weekly therapy. The father was not allowed to have any contact with the children, except for supervised visits for 3 hours once a week.
After the Evaluation was completed, the evaluating psychologist – who was well known and trusted by the family court – reported that there was no significant evidence of sexual child abuse by the father and that the mother had many sincere but inaccurate beliefs – and generalized anger – toward the father. The evaluating psychologist recommended that the children return to the father’s custody and have regular visitation with the mother. The attorney for the children agreed with this assessment and recommendation.
The mother contested the evaluation and a long court hearing was scheduled for the judge to make a final decision.
Just before the hearing, Dr. Jones wrote an urgent letter/declaration to the court, and it was properly served on the father’s attorney. In her letter, she stated, “Sarah has made increasingly concerning disclosures to me about her father touching her sexually – in her bed, in the shower, and in the bathroom. I believe her. Why would she lie about this to me? I take what the children tell me, though one cannot help but consider the truth of what one says as it is spoken. Sarah has been very clear that her father is molesting her. In response to my question, ‘How is your visit going?’ Sarah says she is scared. I urge the court to deny the father’s request to have custody again. I am fearful for the safety of this child.”
On the surface, this letter would raise great concerns for the safety of the child. However, the context is very important. A six-month evaluation had just occurred, including contacts with this therapist by the Evaluating Psychologist. In addition, Child Protective Services had done a forensic videotaped interview with the children immediately after the first allegation was made, and had determined that the allegations were “unfounded.” Also, the attorney for the children had asked the child (with the evaluating psychologist’s permission) if the father had touched her in various settings, and the child said yes to all of them after he said her mother had told him this occurred (even when she had not). The visitation supervisor observed her playing joyfully with her father, until she thought she was being observed; then she acted fearful around him.
Dr. Jones’ letter was written at the insistence of the mother. Since the mother had a history of being extremely angry and demanding, it is easy to imagine her desperate pleas to Dr. Jones to “save her child.” It became clear that the mother had a high conflict personality, and a history of recruiting negative advocates. She brought her husband, her mother, and several others to each court hearing. No one had any useful evidence to offer in support of her claims, but all of them were highly emotional and one even was asked to leave the courtroom after an angry outburst.
But the reason this case is under the heading of Confidentiality, is that Dr. Jones violated the child’s confidentiality in this case by submitting her letter AT ALL! When the attorney was appointed for the children, he was assigned to “hold the privilege” of confidentiality for the children. Dr. Jones had no authorization to release information from him.
At the court hearing, except for Dr. Jones’ letter and one other witness who lacked credibility, substantial evidence was presented that showed that the mother had pressured the child to make false statements, which conflicted with other witnesses and statements of her own. The father was again awarded the custody of the children. The mother was given supervised visitation and sanctioned $10,000 for making knowingly false allegations of child sexual abuse.
The father discussed a lawsuit against Dr. Jones for her breach of confidentiality. However, he decided not to sue her even though breaching confidentiality can be a successful lawsuit even when there is no obvious injury resulting from it. The breach by itself is malpractice and a violation of state laws.
Instead, the father’s attorney sent Dr. Jones a letter reporting research about the importance of three key issues for therapists working with children:
For more information on this subject, please see the guidelines of the following organizations:
American Academy of Child and Adolescent Psychiatry; the American Psychological Association’s Guidelines for Child Custody Evaluations in Divorce Proceedings; American Professional Society on the Abuse of Children
This Chapter has not been a thorough review of all possible issues related to this topic. Instead, it has been an overview of some of the most common problems that arise for therapists in cases of high conflict personalities.
Confidentiality is one of the most important boundary issues for therapists with clients involved in legal disputes. Especially when High Conflict Personalities are involved, you will very likely be pressured to violate your code of ethics and possible laws, either to please an angry demanding client, or to protect a victim (or perceived victim) of abuse in some form. Be aware and be very careful. Maintain a healthy skepticism. This is where many confidential therapists risk being hooked. Otherwise, you may become a Negative Advocate and eventually a new Target of Blame, when a Persuasive Blamer sues you for even the smallest therapeutic indiscretion.
Mental health professionals are increasingly being used by the courts – especially Family Courts – to treat parties in high conflict disputes. Perhaps the referred party has a high conflict personality, or perhaps the court is simply ordering everyone into therapy. It is not uncommon for Psychological Evaluators to recommend that both parents and the children have six months of therapy with separate therapists. This has created a new opportunity for those interested in this kind of work, although it has certain risks – especially with high conflict personalities.
One of the most confusing things is to receive a court-ordered client who simply says, “I was ordered to be in therapy. I don’t really understand why, since it is my “ex” (ex-husband or ex-wife) who really needs it.”
You need to get a copy of the court order, to clearly understand what you are expected to accomplish. Whether you are treating a Persuasive Blamer, or their Target, you will need to be aware of at least the following four issues:
Attorneys and courts are increasingly stating what they want to have accomplished in therapy. For example, the following was a court order in one case, agreed upon by the parties and approved by the court:
“Stephanie Smith, Ph.D., shall be appointed by the court as a counselor for the minor children of the parties for the purpose of meeting with the children three (3) times. Her role shall be as a counselor for the children, and not as an evaluator or as a counselor for the parents. The counselor shall meet with the parents to the extent she feels it is appropriate, in her sole discretion. After meeting with the children three (3) times, the counselor shall contact and speak with the attorneys for both parties, to discuss her impression of future needs and concerns regarding the children and their parenting. The counselor is hereby authorized to speak with the attorneys and with Family Court Services, if necessary. The parties shall equally share the costs for the counselor. The parties shall maintain the existing parenting arrangement until further agreement or court order.”
In the above case, the parents had been sharing a 50-50 parenting plan for three children, ages 10-14, on their own before they came to court. The mother felt that the children wanted to spend more time with her, and the father believed she was influencing the children to want that. Therefore, the mother’s attorney proposed this low-level of input from a neutral therapist, who neither party had previously met.
Dr. Smith then proceeded to meet with the children and each parent for a total of six sessions. She then spoke in a conference call with the parties’ attorneys, in which she stated that the children appeared to be truly more comfortable with the mother (high energy, outgoing) and had several valid concerns about the father (appeared depressed and preoccupied with work). She suggested a shift in the parenting schedule, but the father did not agree.
Boundaries of Confidentiality
Since Dr. Smith’s role was clearly defined and limited to “speaking” with the attorneys and “authorized to speak” with the court counselor,” she went no further and waited for an attorney to take the next step. She did not write a letter to the court, as Dr. Jones had improperly done in the prior chapter’s example.
A Written Report
In another case, the mother took a teenage daughter to a therapist. The girl was having conflicts with her father. While the therapist should have acquired the father’s written consent (based on prior joint legal custody orders), the therapist proceeded to see the child. However, the father later spoke with the therapist and consented to the child continuing with her.
Then, at a subsequent court hearing, the judge ordered a written report from the therapist about the child’s relationship with the father for the next hearing in 30 days. In this case, the therapist had not been previously court-appointed. However, the judge had very strong feelings about how the case should be handled and added to the order that this therapist would not be used in this case if she would not write such a written report. Both parties agreed to her writing a report, and she did for the next hearing.
The case was one in which the father alleged the child did not want to see him because of parental alienation by the mother, while the mother said the daughter did not want to see him because of odd behavior and insensitivity by the father. Therefore, the court’s question to be addressed in the written report was very specific: “Is there specific damage that would occur to the child if she had unsupervised visitation with her father? If not, what would be an appropriate visitation plan?”
In many cases, the orders are not so clear and narrow. It behooves a court-appointed therapist to find out exactly what the court wants. Usually this is best obtained by speaking with the attorneys for the parties and finding out what they believe the court’s intent is, or asking them to provide a written stipulation or court order with such specific terms.
Handling the Conflicting Parties
Whether your case involves a divorce or other legal dispute, high conflict personalities will press you to take their side. There may be one or both parties with such a personality. As soon as you appear to “take sides” in your handling of the case, you risk being dropped as the therapist.
In the example of Dr. Smith above, the attorney for the mother of the three children eventually brought the case to court to obtain an order for a shift in parenting time for the children to spend more time with the mother. Dr. Smith told the Family Court Services counselor (whom the parties met with before their court hearing), that the children’s request was age-appropriate and did not appear to be influenced by the mother, and the Family Court counselor concurred with that recommendation.
However, when the case went before the judge, the father’s attorney successfully blocked any changes by stating that Dr. Smith was not appointed to be an “Evaluator,” and therefore her suggestions and opinions should not result in a change of the custody. The court agreed and denied the mother’s request for a shift in parenting time.
Immediately thereafter, the children completely refused to go to the father’s house for his 50% of the parenting time. The mother did not know what to do, so her attorney recommended that she take the children to Dr. Smith to assist her in handling the children. She did. Dr. Smith empathized with the children and told them “This is what the court ordered, so you have to follow those orders for now. In the future your mother can go back to court and try again to convince the judge that this is what you want.”
Dr. Smith then received a letter from the father’s attorney stating that Dr. Smith did not have the father’s authorization to see the children – that the prior authorization was limited to the three prior sessions. Therefore, Dr. Smith wrote a letter to both attorneys stating that she could not act any further without a new court order. She also mentioned in her letter that she “had met with the children and told them they had to follow the court’s orders and that their mother could try again someday in the future.”
The mother’s attorney then obtained a court hearing requesting to re-appoint Dr. Smith, as the children had developed a trusting relationship with her and they had seen her previously with the father’s consent.
The father’s attorney strongly opposed this request and complained that Dr. Smith “had given the mother and the children legal advice by stating that they could go back to court in the future to make the same request.” The father asked for court sanctions for the mother’s request and the therapist’s inappropriate statement.
The prior judge had just left the court one month after the decision denying a custody change. The new judge agreed that a therapist was needed, but stated that “Dr. Smith should not have made that inappropriate statement to the children and the mother.” He appointed a different therapist, and then sanctioned the mother $3000 for coming to court so soon after the prior judge denied her requests!
The message of this case appears to be that the angry father was unsuccessful at persuading his children to keep living with him half time, but was successful at convincing the court that he was a victim of the mother – and the court-appointed therapist. From a high conflict personality theory analysis, the therapist unnecessarily made a written statement that made her appear to have lost her balance as a court-appointed therapist. The father was a Persuasive Blamer in court, with the help of his Negative Advocate attorney (who was really a pleasant person, but completely adopted her client’s wishes and viewpoint). Together, with strong emotions, they persuaded the new judge that the mother was the Target of Blame. The judge became emotional about the case and directed his anger at the mother for coming to court – after granting what she had requested, a therapist for the children!
The outcome of this case reinforces the importance of bonding with both parties to the dispute and especially making efforts to avoid the appearance of taking sides. Dr. Smith’s statement above appears very appropriate for adolescents: here are the rules, you must follow the rules, and here’s how the rules are made and can be changed in the future. However, in a case with a high conflict personality, it is essential to walk very carefully – especially as a court-appointed therapist.
Psychologists are increasingly relied upon to explain mental health issues to the courts, as neutral, court-appointed evaluators. They are well trained for this purpose. As this is an area of great detail in other texts, this chapter will be brief – emphasizing troublesome issues when High Conflict Personalities are involved. There seem to be four main issues regarding these evaluations:
Psychologists have traditionally hesitated to include this information, especially in family court cases, for fear it will overly stigmatize one or both parties, or overly influence the parties and the court in making decisions. I believe that this information is helpful in understanding the dynamics of the case, and that it is important to include – with a strong explanation and cautionary statement about its limited weight in making specific decisions.
For example, in one divorce case, the psychologist met with the parties and their attorneys to explain his intended Evaluation report, which was not yet written. He let the attorneys glance at the MMPI results, but did not want the raw results to leave his office – and we agreed. I noted that one party’s lie scale was slightly elevated, but I noted that he was significantly high on histrionic traits. This was helpful to me in understanding that this person was more likely to be overreacting rather than blatantly lying in making various vague allegations.
Yet when the written Evaluation report came out, there was no Axis II information at all. There was no mention of histrionic traits. If I hadn’t seen the MMPI data, I would never have received this useful information. Of course, an attorney can generally demand and obtain the raw data upon which a Psychological Evaluation is based, when it is court-ordered and part of the basis of the psychologist’s expert opinion. However, I believe it would be helpful to be more open about this Axis II information.
I recognize the concern about stigmatizing one or both parties, but this was the failed approach the courts used years ago in discussing alcoholism and addiction. Today it is so much more useful to diagnose and treat these problems, than to keep this information under wraps.
When I see a Psychological Evaluation with information under Axis II (usually just maladaptive traits”), I find it very helpful in understanding how to proceed to seriously address the underlying issues of one or both parties that may be driving the high conflict case.
This is a controversial area and I leave it to the reader to form an opinion about my recommendation that more personality information would be helpful in Psychological Evaluation Written Reports.
In many cases, it may depend on the parties and the professionals involved. If there are two attorneys with high conflict personalities themselves (generally Negative Advocates), then this information might just add to the unnecessary escalation of the case. However, if there are two Problem-solving attorneys who want to seriously address realistic behavior change in the case, then this information could be extremely helpful.
AXIS I ISSUES
Assessing the level of an addiction or depression is often the “presenting problem” in a case. However, this must not exclude an understanding of a family’s dynamics – especially in a custody and visitation dispute.
For example, a psychologist did a 4-month evaluation in a case with a father who had a sexual addiction. The Report focused almost exclusively on the father’s addiction and his positive involvement in treatment programs and recovery activities. Almost in passing, the Report mentioned the mother’s anger at the father, but no serious analysis of it. Yet the court case revolved around visitation issues in which the driving factor seemed to be the mother’s efforts to severely limit the father’s contact with the children – despite the psychologist’s report that there was virtually no risk to the children from the father.
An attorney for the children was appointed in that case, and then the visitation conflicts began to be resolved. The mother’s behavior appeared to indicate traits of a high conflict personality, which helped guide the father’s attorney in asking the attorney for the children to provide very clear rules and in dissuading the father from reacting to the extreme mood swings of the mother. If the psychologist had addressed these personality traits and how to deal with them, it may have saved a lot of time, money and the need for an attorney for the children.
Again, this is an area where the psychologist must use his or her judgment in handling the issue of a high conflict personality. However, being careful not to overlook the significance of personality traits, at least, is becoming increasingly important. Especially when a case is back in court several years after a divorce, it helps to recognize that one (or both) parent’s intense anger may be characterological and not just “getting over the divorce,” as many evaluators often try to say. Perhaps this is easier to accept for the parties, but they are better served to have assistance with their more important underlying Axis II issues. Psychologists have a real opportunity to assist in this process.
MINIMIZING ANTISOCIAL TRAITS
One of the biggest differences between mental health professionals and attorneys in legal disputes is the issue of antisocial traits. Attorneys appear to view one (or both) parties as lying, fabricating and consciously manipulating other professionals. Mental health professionals seem more sympathetic to the parties and less willing to view their behavior as intentional and malicious. There is often a difference of opinion over whether a person is consciously lying or unconsciously distorting events, through one or more of many cognitive distortions.
From my observations of hundreds of cases in practice, I believe that most high conflict persons are driven by unconscious cognitive distortions, yet they knowingly lie some of the time to obtain their goals. As one client told me about his wife, “She has always based her actions on the idea that the ends justified the means.” In their case, the wife was constantly fabricating new events, which were easily proven untrue. Did she herself believe them? At first, I thought she did, but over time, it became clearer that she knew she was making up events. She had escaped from a country with a dictatorship and this is how she learned to survive.
Knowingly False Allegations
For example, in the case described in Chapter 11, the judge made a finding that the mother made knowingly false allegations of child sexual abuse. This decision was based almost completely on documentary evidence that had also been submitted to the Psychological Evaluator. Yet the psychologist stated in his Report that he believed that the mother had a good faith belief that the father was molesting the child, and that her anger at the father was left over from the divorce (which occurred 5 years earlier). In addition, both the judge and the psychologist knew that the mother had pled “no contest” to a misdemeanor domestic violence assault and battery against the father at the time of the divorce.
Also in this case, the child told a later therapist (not Dr. Jones), that her mother had yelled at her repeatedly to say the father was sexually abusing her – during a camping trip right before the mother filed her papers to request a change of custody. She told this new therapist that she lied so her mother wouldn’t be angry with her. She knew her father would forgive her (and he did).
From my observations of numerous legal cases involving psychological evaluations, I believe psychologists need to consider more seriously the possibility that there is underlying antisocial behavior and possibly antisocial personality traits that may be driving the case. The presumption of innocence that I see so often in evaluations lacks credibility unless the possibility of an antisocial personality has been fully explored and explained in the Report.
BONDING TOO STRONGLY WITH ONE PARTY
Psychologists are human. While trained to avoid becoming too close to one’s clients, it is not uncommon for psychologists (especially inexperienced ones) to become friendly with one party and distant from the other. This especially seems to occur in cases of high conflict personalities.
As described in Chapter 1, Persuasive Blamers often have a very charming “public persona” which quickly engages decision-makers in a relaxed and happy relationship. This is by design and lifelong habit for the Persuasive Blamer.
The Persuasive Blamer then proceeds to repeatedly focus on the “many” negative qualities of their Target in the case, with emotional intensity and detail. Often these details are gross exaggerations or outright falsehoods. However, as the psychologist proceeds to gather information in the case, the favorable relationship with the Persuasive Blamer may seem to “help” the psychologist minimize the negative information about that party. The Blamer is seen as simply misinterpreting information in good faith. On the other hand, the information about the Target helps reinforce a negative stereotype, which maximizes the negative information about them.
As described above, under Axis I Issues, the mother in that case had an intensely negative view of the father with a sexual addiction. Yet her anger appeared unchanged two years after the parties separated, and after two years of psychotherapy. The psychological evaluator barely addressed the issue of her chronic and intense anger, and briefly commented that it appeared related to the divorce. It would have been much more helpful to have examined the potential for Axis II issues and have explained in detail why she did or did not have any those traits. But perhaps the evaluator’s very positive bond with the mother got in the way. As was evident to the other professionals in the case, her chronic anger was a significant issue and needed to be addressed directly, and her parenting behavior needed to be changed. It was not all just about the divorce.
As described in this chapter, there are many difficult issues when high conflict personalities are involved in Psychological Evaluations. The psychologist must be more acutely aware of these issues, so that he or she does not minimize the potential presence of personality disorders or traits, nor hesitate to inform the legal professionals who will be dealing with the case, sometimes for years in the future.
However, this is a highly discretionary area and the psychologist must use his or her judgment in determining how to handle and present this information for the most effective long-term use in each unique case.
One of the areas of significantly increasing opportunities in legal disputes is in assisting one party. This ranges from consulting on issues of case strategy and trial tactics, to appearing as an expert witness to challenge the opinion of a court-appointed evaluator, to coaching one party in legal negotiations with the another party – who may have a high conflict personality.
High conflict personalities are increasingly taking their Targets to court in unnecessary, personality-based disputes – which legal professionals and the parties rarely understand. As an attorney with mental health training, I am continually encouraging those in these disputes to obtain the assistance of their own mental health expert. As an author with national exposure, I am constantly being asked for referrals to knowledgeable mental health professionals in various cities and states around the country. Psychologists are particularly sought, as you can provide psychological testing and respected court testimony if necessary.
There are three specific areas of opportunity I will address.
Much has been written on preparing and presenting expert testimony at court that will not be repeated here. However, in cases involving a High Conflict Personality, there are special issues for the professional who is one party’s expert witness. This role is in contrast to the role described above of a neutral, court-appointed evaluator.
If there is no court-appointed psychological evaluator in a case, a party may wish to bring in an outside “expert” to educate the court on the mental health issues involved in a case. Generally, courts allow expert witnesses when they are provided by either party to give important information, which is relevant to the decisions to be made, subject to the Evidence Code rules applicable for expert witnesses. Such a witness needs to qualify as an expert, before the court can listen to testimony from that expert.
Criminal and Civil Trials
In many criminal and civil trials, each side provides an expert, and there is usually not a neutral, court-appointed expert/evaluator.
For example, in the Betty Broderick case in Chapter 1, expert testimony was provided by psychologists and psychiatrists. Both side’s experts indicated that Betty appeared to have a borderline personality disorder, which explained how her shaky identity was wrapped up with her husband’s identity. However, they differed over whether her actions were intentional when she killed him.
In the case of Mr. Gossage in Chapter 1:
“Five mental health professionals interviewed Gossage shortly before the State Bar Court hearing. These individuals opined that Gossage had successfully overcome any substance abuse problem or personality disorder afflicting him in the pre-1983 period, when he killed his sister and committed other serious crimes. None saw any sign that Gossage presently suffered from a diagnosable mental disorder or psychopathological condition. However, the Committee’s witness, Dr. Feinberg, could not eliminate the possibility that Gossage’s failure to promptly resolve the traffic citations during law school was the product of a ‘residual’ inability or unwillingness to abide by societal rules. One of Gossage’s witnesses, Dr. Carfagni, similarly suggested that receiving four to six traffic tickets over a three- to five-year period might reveal the presence of an antisocial attitude or personality.” (Emphasis added)
In Re Eben Gossage, On Admission (2000) 23 Cal. 4th 1080, 1092-93; 99 Cal. Rptr. 2d 130.
When high conflict personalities are involved, it is common for experts to become passionately involved on both sides of the case. From my observations, they are often persuaded first by the empathy they feel for the party with whom they are familiar. They do not realize that high conflict personalities are constantly trying to charm and persuade them.
In legal disputes, this charm and persuasion takes on extreme and subtle forms, which mental health professionals (trained in providing therapy rather than skeptical forensic analysis) are not prepared for. Emotional persuasion often comes before analyzing the facts in legal cases. Consequently, the facts may unconsciously become skewed to favor their client. I often notice this when there is a passion underlying the professional’s opinion, which does not seem warranted by the facts. A “dispassionate” professional is much more persuasive in court, because the judge and/or jury is looking for an objective assessment removed from emotional persuasion.
Unless psychologists and other experts are prepared for this emotional persuasion, they may become biased in a manner that looks obvious to outsiders – especially skeptical legal professionals. Cross-examination in these cases often focuses on this vulnerability of mental health professionals to see their clients as motivated by good faith reasons and not lying, but simply distorting.
One protection against being unconsciously biased is to obtain consultation and collaborate with other professionals before reaching a conclusion that will be presented to the court. “Does my diagnosis and assessment appear reasonable given these facts? What other facts do you think I need to look for? Is there another point of view that should be considered and ruled out? Do you think I have been fully informed?”
Family and Juvenile Courts
In family courts and juvenile courts, there is more likely to be a court-appointed neutral expert, as the courts wish to avoid the “dueling experts” in family and child related matters that are commonly tolerated in criminal and civil cases. However, each party may still provide additional expert testimony by a mental health professional of their choice.
One must be careful in being an additional expert in high conflict cases. Often a party with a high conflict personality will search high and low for an expert who will support their view of the case, when everyone else says that they are being unrealistic or that their viewpoint is distorted. They often leave out essential information and use emotions to obtain assistance in their adversarial view of their own case. Taking time for a thorough review of the facts, and speaking with those other experts previously involved can be very helpful.
As an expert for one party only, you must be clear on your one-sided role. This expert cannot present a clinical opinion about a party he or she has not interviewed clinically. While this would appear obvious, there are numerous high conflict cases in which a mental health professional has been manipulated into writing a declaration or testifying about a party he or she never met. An example of this is in Chapter 11, on page 120, in which a self-described “forensic psychologist” made recommendations restricting the visitation of a father he had never met.
Instead, one party’s mental health expert can testify on subject matter about which they are an expert, and on their evaluation of their own client. The following is an example of an expert for one party providing a constructive contribution to a case in which there was a court-appointed evaluator and allegations of child sexual abuse:
Critiquing the Court-Appointed Expert
In this case, a divorced mother reported her child’s statements of behavior by the father during visitation that suggested child sexual abuse by the father. The mother was told by Child Protective Services to obtain family court orders for supervised visitation pending an investigation, and she did. Later, the court appointed a psychologist to perform a neutral evaluation. In his final report, the psychologist concluded that there was insufficient evidence to support the allegation of child sexual abuse and that the mother had a fixed belief that abuse had occurred. He recommended that the father protect himself against future such allegations, and he predicted that the mother would make more allegations. He criticized the mother’s concerns, but he did not conclude that they were made maliciously or were knowingly false allegations.
In this case, the father brought a motion to court to obtain custody of the child, based on allegations that the mother was knowingly making false allegations and he cited the psychological evaluator’s numerous criticisms of the mother. In addition, he provided a declaration from a psychologist who made a critical conclusion about the mother, without meeting the mother.
Out of concern that the father might obtain a change of custody, while the boy was doing well in her care, the mother and her attorney decided to retain their own psychological expert as well. This expert had more than five years’ experience (a common standard for court-recognized experts on any subject) in treatment of child sex offenders. He interviewed the mother and submitted a declaration that the mother’s concerns were normal and appropriate. He further explained the limitations of the psychosexual testing methods used by the neutral evaluator. Finally, he explained how difficult it is to reach any conclusion with certainty based on the limited facts in this particular case.
After reviewing the neutral report and the declarations of each party’s expert witness, the judge stated that he saw no evidence of child molestation by the father, but he reiterated much of the mother’s expert’s analysis in explaining why he was not going to change custody. He found that the mother’s concerns were normal and appropriate, and not made with the intent to harm the father or the father’s relationship with the child. While the neutral evaluator had not recommended a change in custody, the mother’s expert seemed to help the court resolve the question of whether the mother had purposefully made false allegations.
Sexual Abuse Allegations
The issues in the above case are increasingly familiar in family courts around the country. Child sexual abuse and false allegations of child sexual abuse are some of the most vexing issues handled by family court judges. They are relying heavily on psychological experts to help them understand and resolve these cases. There is no cookie-cutter solution, as some are cases of true sexual abuse, some are knowingly false, and many are cases of false allegations sincerely believed by one of the parents. Substantial research shows a fair amount of conflict between respected authorities. The facts of true cases and false cases are often very similar:
See True and False Allegations of Child Sexual Abuse: Assessment and Case Management, T. Ney; Jeopardy in the Courtroom, Ceci & Bruck
Thus, a credible expert can make a very significant contribution in these highly controversial cases. They cannot be decided by presumptions, which is how many judges have approached these cases in the past. One cannot presume that most cases are true or that most cases are false. Each case must be carefully examined on its own facts and merits.
At a national forensic social work conference I attended last year, one of the presenters on this topic asked what the members of the audience believed about the frequency of true and false allegations of child sexual abuse. The audience included a few attorneys and judges, as well as social workers. The responses were that reports of child sexual abuse are false approximately 10% to 70% of the time. There still appears to be this wide range of views among professionals in practice. Moreover, it is very common for the various professionals to be in passionate conflict with each other when high conflict personalities are involved in these cases. The following is another example of differences among experts in these cases:
In this case, four mental health professionals testified for the father in his defense of criminal charges of child sexual abuse. The appeals court reversed the conviction of child molestation primarily on procedural grounds, but the conflict in testimony by professionals is particularly interesting and typical of high conflict personality cases. Perhaps the main issue is whether all sides adequately addressed the problem of a personality disorder, or one side completely ignored it.
“A psychiatrist testified that she had evaluated the family and concluded there was no indication that abuse had occurred. She further testified that the [child’s] mother suffered from borderline personality disorder, had a distorted view of reality, and projected those views and her feelings onto the [child] who was suggestible. A clinical psychologist testified that the [child’s] mother had a borderline personality disorder, that she had trouble with reality, and that she might project her feelings onto her child. She further testified that preoperational children will believe something is reality if repeated enough times, that in her opinion there was no evidence of abuse in this case and that the [child’s] allegations were the product of the [child’s] mother’s distortion of the facts in order to retain custody of the [child]. An associate professor of psychiatry testified that in his opinion the [child’s] mother was projecting her own sexual problems with [Mr. Kipp] onto the [child’s] relationship with [Mr. Kipp] and that the [child] did not exhibit any of the characteristics of an abused child. He also testified on redirect that it was possible for a mother to lead a child to believe the father had abused the child, even though not true. Finally, a psychiatrist testified that the [child] was suggestible and that the [child], torn between her mother and father, chose to please her mother.” (Emphasis added)
Kipp v. State of Texas (1994) 876 S. W. 2d 330, 334-35.
However, in the Kipp case a fifth mental health professional testified for the prosecution, stating that he believed the child not been coached and that there had been sexual abuse. The following was his testimony. This is not provided to convince you that this was a true or false case, but rather to show the nature of the questioning, objections and the answers given. This example also includes a “hypothetical,” which is often used in questioning experts, so that they are not answering the final legal question at issue in the case to be decided by the judge or jury.
“In rebuttal, the State called Dr. Michael
Cox, an associate professor of psychiatry. Appellant complains of Cox's
testimony relating to the issue of whether or not the complainant had been
"coached.” Appellant's objections to this testimony on the grounds that
Cox was testifying as to the credibility of the complainant witness, thereby invading
the province of the jury, were overruled.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
Appellant complains of the following testimony:
[Prosecutor] Q. How do you differentiate between a coached child and a child that's being truthful and giving you – telling you something that they actually remember happening to them?
[objection by appellant overruled]
Q. How do you make that determination as a psychologist or anyone?
[Dr. Cox] A. Well, there are a number of ways that you look at that.
I think, first of all, the coached child is
a non-spontaneous child. Their reports in terms of the detail and specificity
can go only as far as the adult input who supposedly coached the child. In
fact, there will be some loss in terms of recall and memory.
Let me give you a hypothetical. Suppose you heard a child give these details. That an offense occurred when she was three-and-a-half years old. It occurred at her daddy's apartment. It occurred in her room at that apartment. On her bed in that room. That she had on pants that were pulled down to her ankles. That while she was on the bed he touched her on her genital area and then inserted his finger into her rectal area. That it hurt. That then there was a knock on the door, and it was her grandparents. That sequence of events, what would be your opinion as to whether a child could be coached into relaying those types of details?
[objection by appellant overruled]
Q. What is your professional opinion about that hypothetical?
A. That hypothetical strikes me as containing a lot of detail, a lot of sequencing. That would be difficult to coach up a child to give that kind of scenario in my experience.
Q. Okay. When we were talking about coaching versus accurate information from children and talking about details – I'll show you what's marked as State's Exhibit Number Eight and if in a hypothetical case you had that picture drawn by a child and a corresponding description of abuse that is pictured by that . . . Is that the type of drawing that one would expect to see with a child that had been coached or that was not giving something from memory?
A. This is the type of graphic picture that you see in cases of abuse. Not coached.
Q. Not coached. Do you notice anything about the facial features of the figure that appears to be laying on the bed?
Q. What do you notice about that?
A. Really several things. First of all, it's a gloomy face. Mouth down turned in a frown. But the eyes probably are the most striking to me. The eyes appear turned back as if to look away as if to disassociate.
Q. And do you think that's a very important observation on that picture?
A. I think so.
Q. Do you think that something that a child that had not experienced that abuse could somehow draw in that way?
A. Very unlikely.”
Kipp at 335.
Those with high conflict personalities are often involved in these cases. When there is child sexual abuse within a family, there is often a Narcissistic and/or Antisocial Personality Disorder involved. Such a person may abuse a child for his own purposes, often minimizing or justifying the behavior as what the child wanted – or seeing the child as having identical desires and needs as the adult has. Yet those with these personalities are particularly persuasive with authorities and even other family members, in denying what they have done. Investigators who are not very careful may be easily persuaded and misled.
On the other hand, many of those found to be making false allegations (whether sincere or knowingly false) were found to have Borderline Personality Disorder, as described by the defenses’ expert witnesses in the Kipp case. In either case, qualified mental health professionals have an opportunity in the legal system to use their knowledge to help the court differentiate between the fine details in their cases. As high conflict personalities increase their presence in today’s courts, bringing their cognitive distortions and emotional persuasion, such experts will be needed more than ever before to explain what is going on. In particular, they will be needed to explain the significance of personality disorders in these cases, and how they confuse and manipulation information.
This section has explained potential opportunities for those mental health professionals who wish to be involved on behalf of one party as an expert witness at court. The next section explains how a therapist can assist an individual party out of court in handling a high conflict case.
A CONSULTANT IN HANDLING A HIGH CONFLICT CASE
When a court has appointed a neutral psychological evaluation, this does not mean that no other psychological experts may be involved in the case. Instead, it is often helpful for a party to retain another mental health professional to advise him or her on how to handle the case – and how to handle the evaluator.
Each party will usually be expected to meet several times with that evaluator to provide information and to be observed with the child, if there is a child. A therapist acting as a consultant for one party can assist in explaining what to expect, how to prepare, and what to do if problems seem to arise during the evaluation process.
It is unethical and illegal in many states to show a client psychological tests prior to taking the tests, especially with a neutral evaluator performing an evaluation. However, one’s consultant can explain general procedures so that the client is not surprised.
Just Tell the Truth?
One area of ethical concern is telling the client how to approach psychological testing. Is it wise or harmful to say, “Just tell the truth?” Would such a client appear to be more cooperative and disclosing than is generally true of this person? Could this skew the results for a client who would otherwise show up as “guarded,” “indicating paranoia,” “generally defensive,” etc.? Or would such a party overly emphasize self-doubts, fears, and cognitive distortions that they would usually question, in order to appear “honest” and fully disclosing? Such questions may have ethical implications, to be discussed with one’s colleagues. They must be carefully considered by the therapist who is acting as a consultant.
Perhaps the better answer in preparation for psychological testing in a custody evaluation is to suggest that the client just try to be herself. Then use the results to assist him or her in making personal changes if problems are pointed out. The courts often favor someone who acknowledges a problem and works on it, such as a recovering alcoholic who regularly goes to Alcoholics Anonymous meetings.
Likewise, in a home visit each party should generally try to be natural. In one case example, a mother and father approached the home visit completely differently, as follows:
“During the home evaluation I didn’t dress my house up. I let things happen. When my baby wanted to take a nap in the middle of the in-home visit, I just let him take a nap. It was just all very easy. It got reflected in the evaluation.
“What my ex did was stage a meal that was perfectly balanced. She had the children get down and do prayers. The evaluator thought it was staged and unnatural and it was commented on in the evaluation… I think everybody wants to clean up and look nice. But the fact of the matter is you just want to present the functioning, well-adjusted family, not the perfectly vacuumed living room. You want it to look like people live there. I think the CD set did a really good job in terms of how to handle those in-home interviews, even though it could have explained more about the evaluation process.”
SPLITTING: Protecting Yourself While Divorcing a Borderline or Narcissist, W. Eddy (2004) p. 136. Used with permission.
The CD set described in the above quote is found at a website for parents involved in high conflict divorce custody disputes: www.bpdcentral.com. This website has a great deal of information for those parties involved in high conflict divorces, especially those involving someone with traits of a borderline personality disorder. This website encourages parents in conflict to obtain psychological custody evaluations, so that the personality issues can be brought to the surface by competent professionals. I also emphasize getting a psychological evaluation in my book, SPLITTING, described above. It is available at that same website. If self-help resources are addressing this issue of high conflict personalities, it is vitally important for mental health professionals to discuss this information with their clients as well – especially those involved in court cases.
Predicting a Pattern of Conflict
A mental health professional acting as a consultant can also help a party anticipate crises and conflicts in their court case with someone with a high conflict personality. I have described a typical pattern in divorce cases in the book SPLITTING as follows:
“When Borderlines and Narcissists who are Blamers enter the court system, there is a common – and sometimes severe – pattern of problems which can be anticipated…. They often:
AGGRESSIVELY BLAME A TARGET
Blamers constantly misperceive events, have overwhelming emotional distress, and experience frequent interpersonal conflict. They truly do not understand why things happen to them. They view all problems as caused by forces external to them. They chronically feel like helpless victims.
They are unable to reflect on and change their own behavior.
While it may seem obvious to everyone else, they truly do not see it themselves. (Beck, 1990)
Since they cannot see their own role in their problems, they automatically look outside themselves for the cause. For many personality disorders, this may be a generalized blame. But for Blamers, the causes of their problems are perceived as those closest to them. Thus, they attack those they love because they “split” people into all good and all bad.
When these attacks do not work, they cannot consciously process what is really wrong. Thus, they intensify their attacks – physical abuse, verbal abuse, or legal abuse – in frantic efforts to get others to change or to get revenge for perceived abandonment or narcissistic injuries.
They truly believe that such behaviors will make them feel better. For many Blamers, their response to a divorce is to focus incredible energy on attacking the person they believe is causing them their painful feelings – even if it is the Blamer who is seeking the divorce.
This person becomes their Target of Blame: a Target of obsessive thinking, repeated verbal attacks, sometimes-repeated physical abuse, and negative publicity to all who will listen. They pressure other people to take a position in this blaming war: “Either you’re with me or you’re against me.”
The intensity of their anger and blame catches people off-guard. Often, just to calm the person down, others will reluctantly join in the blaming of the Target. This encourages the Blamer to further pursue his or her “distortion campaign” against the Target.
While everyone automatically has cognitive distortions from time to time, those with personality disorders are constantly driven by these automatic negative thoughts. Their cognitive distortions underlie serious misbehavior, including physical abuse, emotional abuse, and even legal abuse (using the legal system to attack a Target, and to promote false or unnecessary litigation).
Most people reflect on their own thoughts: “Is this true? Am I overreacting? I should check this out.” Those with personality disorders do not seem to have the ability to reflect on their own thoughts or behavior.
It is like a computer “virus” which gives them self-destructive information, but looks like normal information. When other people believe them at face value, it is like passing a virus along.
Unfortunately, those with personality disorders do not have an “anti-virus” type program to counteract the cognitive distortions – an “anti-distortion” program – as most people have. Therefore, they accept their distortions as true and act on them rather than questioning them – much to the detriment of everyone around them.
Blamers feels victimized by others and cannot see it is their own problem. They want to relieve their intense internal distress, so they seek a Target to blame or attack to feel better. Thus, you become the Target of a distortion campaign – in the marriage and in the divorce.
With 30 years of no-fault divorce laws, and a divorce rate of approximately 50% in this country, most people recognize that divorce has many causes and that both spouses share some responsibility for the end of a marriage.
However, for Blamers, it cannot even slightly be their fault, so it must be ALL YOUR FAULT!”
SPLITTING at pp. 7-8. Used with permission.
Understanding this typical pattern significantly helps those parties who are completely caught by surprise. It normalizes things for them, when they otherwise are overwhelmed by the intensity of their former spouse’s personal attacks, combined with the criticisms coming from the opposing attorneys and surprisingly negative decisions of the judges – especially at the start of the case before the underlying patterns can be explained to the court.
Assisting the Attorney as a Consultant
I have consulted with many attorneys regarding the predictable patterns in cases with high conflict personalities, where to look for evidence, how to handle the opposing counsel who is a negative advocate, and in assessing whether the attorney is at risk of violence from the other party. All of these are important areas for mental health professionals to give information and advice to attorneys seeking it. These high conflict cases are significantly impacted by mental health information. The duration of the case, and whether it escalates or settles, is primarily determined by how the case is personally handled by the attorney and the party. This is a tremendous opportunity for mental health professionals to provide helpful assistance.
A COACH IN NEGOTIATIONS AND COLLABORATIVE LAW
Lastly, in assisting one party in a high conflict dispute, mental health professionals can assist in negotiating a settlement. A high conflict personality on the other side does not necessarily mean that a settlement is not possible. It just means that care must be taken, one’s battles must be chosen wisely, and one should communicate in ways that are the least likely to unnecessarily trigger over-reactive defense mechanisms for the high conflict personality.
Negotiating a settlement is how the vast majority of legal disputes are resolved. Less than 10% of legal cases filed actually go through a full trial. Most are settled on the courthouse steps or by meaningful negotiations prior to the date of trial or hearing.
However, despite this reality, many attorneys and parties insist on taking a demanding and adversarial position up to the last minute. Those with high conflict personalities often retain attorneys who are Negative Advocates, therefore the battle only ends when a loss or settlement looks inevitable.
Mental health professionals can advise attorneys on how to handle high conflict personalities by recommending that they pay particular attention to the following four steps, as described in Part II:
You can advise an attorney and his or her client to pay more attention to how they Bond with the other party, by reviewing letters for inflammatory language. Attorneys are so used to being adversarial in all of their communications (even with their own clients at times), that they do not realize how inciting many of their letters are. The simplest changes in wording can reduce or escalate a conflict with high conflict personalities. Reviewing a letter for its high conflict triggers can be a big help. Also, allowing a client to review even the most basic correspondence can be reassuring to them, and he also may be able to screen for triggers.
One of the guiding principles that I have learned in negotiating as an attorney, is that I cannot kick the other side and then ask them to do my client a favor or be more flexible. Many attorneys do not know this basic concept or do not realize when they are violating this principle. Any mental health professional should be able to explain the benefits of avoiding adversarial tactics in sensitive negotiations – especially with a high conflict personality on the other side. This does not mean giving in. There is a big difference between HOW a negotiator communicates and WHAT they are communicating. Lawyers tend to get these issues mixed up (or even reversed) in an effort to SOUND TOUGH.
There are many ways to pay attention to Structure in negotiations. Putting realistic deadlines in negotiation letters is a basic. High conflict personalities tend to impulsively react or to interminably delay in negotiations.
Allowing the other side to make small decisions regarding when and where to meet for negotiations gives the high conflict person a sense of control and less need for defensiveness. It is very common for attorneys and parties to become demanding and try to limit the other party when they are impulsive or delaying.
Taking an empathetic approach, ignoring unnecessary responses, and being firm and clear on necessary issues can be very helpful. Changing dates, changing demands and changing tactics in response to an unstable high conflict personality usually makes things worse. In many ways, mental health professionals must teach legal professionals to handle these cases as you would a difficult adolescent or preschooler.
Consistent tough love is better than reacting with toughness one minute (threatening court hearings) and encouraging one’s client to “give up the store” to get it over with the next minute.
Not surprisingly, attorneys frequently burn out on dealing with high conflict cases. Surprisingly, they often advise their clients to prematurely settle the case or accept false allegations just get it. Helping an attorney keep patience may be the best thing you can do for your client, as well as advising when to fight and when to back off.
Collaborative Law is a relatively new concept in resolving legal disputes out of court. Lawyers who use this approach in a case sign an agreement that they will never take the case to court. If the parties want to (or need to) go to court at some point, they have to relieve their Collaborative attorneys and retain new attorneys. This approach has been catching on with attorneys with surprising enthusiasm and speed. It can be used in almost any area of civil law.
In the area of divorce law, a larger team approach has sprung up and is being promoted by an organization titled “Collaborative Divorce sm.” The “sm” stands for Service Mark, which means that they own this particular approach and can train people in it nationwide. It has been a very successful approach to organizing and promoting a consistent philosophy. Many attorneys, mental health professionals, and financial advisers have been trained in this approach, and are teaming up to help settle cases around the nation.
The role of Coach in Collaborative Divorce is that of a mental health professional who coaches his or her client during the process, in terms of understanding the other party, brainstorming ways to communicate with the other party to promote settlement, processing the client’s anxieties and possible misinformation about the divorce process, helping the Collaborative Divorce team understand the client, helping the team work together and communicate, and case managing the overall process.
An additional role in Collaborative Divorce is that of the Child Specialist, who is also a mental health professional. The Child Specialist meets with the parents and assists them in understanding the developmental needs of the child(ren), the ways they can communicate about the child(ren), examining their own beliefs and/or biases about each other as a parent, and making suggestions for their long-term parenting plans.
Both the roles of Coach and Child Specialist are taken by different mental health professionals, be they psychologists, clinical social workers, or family counselors. Each party has their own coach, which that party selects from a list of Collaborative Divorce professionals in their county. Then, the parties jointly select a Child Specialist.
This collaborative process is particularly well-suited to those with high conflict personalities. The party has their own “advocates” – an attorney and as a coach. This reduces the fear and mistrust that is present for HCPs in the Mediation process, where both parties share one Mediator who may be seen as taking sides no matter how hard the Mediator tries to appear neutral.
In addition, the party’s collaborative advocates can confidentially discuss all aspects of a settlement without the complications of the other party being present. This potentially helps HCPs feel less vulnerable in negotiations and more able to process cognitive distortions without being attacked or criticized. The confidential and separate support provided by the Collaborative process can make the crucial difference for an HCP who feels overwhelmingly threatened in the public exposure of court and the intimate intensity of Mediation.
For information about becoming involved in Collaborative Divorce, go to www.collaborativedivorce.com on the Internet. For more general information, look up “Collaborative Law” in a Google search on the Internet and you should find a group in your city or state.
There are many ways to assist one party in a legal dispute with your specialized knowledge of behavior and mental health. This role allows you to develop more of an individual and positive relationship with the client as his or her advocate, than that of a neutral evaluator or mediator.
In court, you can appear as an expert witness, but be aware that you may (or will) be emotionally and intensely attacked by the other side because of their client’s high conflict personality. On the other hand, you also need to be careful that your own client and his attorney do not attack you at some point because of his own high conflict personality. Borderlines and Narcissists are particularly known for turning on their advocates with a vengeance when they are disappointed – even though it is often their own doing which has hurt them, not yours.
As a consultant, you can provide many suggestions, from explaining the predictable conflicts and crises of the high conflict personality, to suggesting how to communicate with the opposing party and attorney for the best negotiation results possible.
Lastly, there is a dramatic and significant surge in interest in Collaborative Law, especially in divorce cases. The role of Coach can be a satisfying and particularly helpful one, especially in cases of high conflict personalities where you can help the whole team help the clients. This can be the most satisfying of all, if you can assist in moving a client from an adversarial position to a collaborative resolution – without giving up but growing in the process instead.
Handling cases involving High Conflict Personalities can be an exciting opportunity, but it has its risks. Most of those who sue, stalk, assault, or verbally attack their mental health professionals appear to have high conflict personalities – with extreme blaming in thoughts, emotions, and behavior. Most of the risks of working with these clients are predictable and avoidable. This chapter will address these common risks. This chapter does not address the legal and ethical issues of professional practice. Instead, it addresses the common interpersonal pitfalls of handling high conflict personalities in legal disputes.
Usually people do not realize they are involved with someone with a high conflict personality until they have been in a close personal relationship (friendship, marriage, or professional) and/or near the person during a crisis. Therefore, professionals, family, and friends often start out naïve and are caught by surprise by those with these personalities. The following characteristics are not obvious at first, but may become obvious over time.
On the other hand, many of those involved with an HCP may have their own blinders, so that they screen out this personality information and chalk it up to a bad day or a situational crisis, such as a divorce. Many of those with these personalities are actively and aggressively trying to divert attention from their private unacceptable behavior, with good deeds, excessive apologies, constant verbal reinterpretations of events, and/or blaming the listener for misunderstanding. The key is to remain open to all information and always consider the possibility that you have overlooked personality factors in understanding a dispute.
In order to avoid taking unnecessary risks, I recommend that you keep the following in mind at the beginning of all relationships, especially professional relationships involving one or more parties involved in legal disputes.
1. Avoid Unrealistic Expectations: This is the biggest mistake professionals make with high conflict personalities, often because they do not recognize the warning signs. We can all be easily flattered by a client who has been referred by someone we respect – especially when the client says they were told we are the best at what we do. However, with a Borderline it is well known that we will be idealized and then devalued. With a Narcissist, there will eventually be a court decisions or other actions that show that we are not as powerful and perfect as the Narcissist wanted. This natural setting-in of reality can end the relationship – and trigger a lawsuit – if you allow the initial expectations to get too high.
2. Avoid Apologizing too much: This is a surprising concern with high conflict personalities in legal disputes. It is common for us to apologize, in an effort to be humble and defuse anger. However, a high conflict client in a legal dispute is usually far different from a therapy client. In legal disputes, they are frequently searching for someone to blame for their disappointments and failures. If you apologize too much, you will reinforce their (often secret) belief that you were really the cause of their loss in court. Keep apologies to minor issues, like “I’m sorry I’m late” or “I’m sorry the outcome was so distressing – It was disappointing to me too, after all the good work we both did.”
3. Avoid Bending Your Own Rules: Mental health professionals are helping professionals, so we like to help. It can be very tempting to step over the line with a client who is especially charming, especially smart, and needs what we can easily provide. Common troublesome areas are doing favors for the client, driving the client home after a session, developing a dual relationship of any sort, and becoming emotionally involved. These are the clients who are most likely to push your boundaries, even without you realizing it.
4. Avoid Working Harder Than Your Client: It is tempting to try to take over and solve the problems of a client with a high conflict personality. It is often how we deal with our own anxiety. However, if you work harder than your client works, make decisions for your client, and try to single-handedly solve your client’s intractable problems, you will be resented and undermined by the client. They you may be sued. You have to watch your relationship carefully and get lots of consultation. Your hard work inadvertently reinforces their passive position, their expectations that YOU can really solve their problems, and their extreme disappointment when you fail to fulfill their fantasies.
5. Avoid Direct Anger at Your Client: High Conflict Personalities push us to get easily frustrated, and a common response is to come back with an angry and demeaning response. You may not be able to afford this luxury. HCPs are extremely sensitive, and rather than needing a sledgehammer, they need to feel your empathy, understanding and consistent limits. Anger usually triggers numerous negative experiences for the HCP and thereby activates all of his or her automatic cognitive distortions and self-sabotaging defense mechanisms. Rather than triggering positive growth, anger at the client triggers agitation and an increased drive to prove that you are wrong about him or her. In working within the legal system, this is one area where legal professionals often get in trouble. Even judges mistakenly vent their anger and frustration on these parties, which often results in more misbehavior rather than less, as the client overreacts with more efforts to prove their worth or innocence of any fault.
6. Avoid Believing Your Client: You can empathize with a client without agreeing with them. If you believe your client and she has great outside verification, then you may settle in to a comfortable relationship of general trust. However, it is generally better not to take what the client says as complete or even accurate. If you do, you risk encouraging the client’s cognitive distortions and escalating his or her expectations in the case. It is better to encourage the larger search for information, so that it becomes routine in the case to look for verification – and not just accepting allegations which seem out of the norm and hard to prove. Many HCPs are offended by the need for evidence in the legal system.
“Are you saying you don’t believe me?” your client asks. “No,” you answer. “I’m just saying that the court system requires more evidence than we currently have in order to prevail. The burden of proof is on us, so we had better not make that claim unless we can support it with enough evidence. Otherwise, our claim may hurt you in your case in the long run.”
7. Avoid Making it Personal: Those with High Conflict Personalities are particularly used to taking things personally – including your actions that have nothing to do with them. Obviously, in therapy we call this transference and try to work with it as a positive and normal part of the process. In legal cases, this can lay the groundwork for a lawsuit that we don’t see coming. Therefore, it is best not to directly attack or criticize the client’s actions that you may believe are self-sabotaging. Instead of saying the client is wrong, making false statements, unreliable, etc., it is better to explain how the client’s action “may be misinterpreted,” or is “contrary to local standards,” or “may hurt you in the eyes of our particular judge.” Avoid making it about the client. Make it about the law, the court process, the limitations on evidence, and the current court culture that misses a lot of information that you and the client may know, but may never be absorbed by the court. The problem needs to be “out there,” not in here between you and your client. Otherwise, in the intensity of the disappointment, you may become the client’s next Target of Blame.
8. Pay Attention to Your Fear: Whether you sense a verbal, financial, or physical threat, do not ignore it. Most of us want to see people as acting in good faith and caring about us. In legal disputes, those with personality disorders may project many unknown distortions upon us. Be attentive to your senses and intuition, if you feel afraid of a client or that a client’s decision will harm others.
One of the biggest problems all professionals have is that we tend to see our clients as similar to ourselves in many ways. It is important to understand that those with High Conflict Personalities may truly think very differently from us and may actually want to harm us for some absurd reason.
9. Avoid Believing Stories About Other Professionals: It is common in the legal field and mental health fields to hear criticisms of other professionals. We work in areas of great vagueness, uncertainty, and change. It is flattering to hear that we are great and that others are incompetent, stupid, or mean. There are incompetent, stupid, and mean professionals out there, but we must be very cautious in believing the stories we hear – especially from a client in a high conflict legal dispute. “Splitting” is common in this field, but it is unproductive. Yet it is surprising how rumors spread and false allegations are easily made – even among professionals. A healthy skepticism is the best: “Are you sure that is true? Let’s try to find out and gather more information before we reach any conclusions on that. Perhaps someone has misinterpreted what occurred.”
10. Avoid Becoming Isolated in Your Work: Many of us like to be heroes, and the legal system allows us plenty of opportunities. However, this often causes us to become workaholics, emotionally isolated, and believing in ourselves too much. This makes us particularly vulnerable to clients who are very charming, attractive, bright – and very needy. Those with High Conflict Personalities often get under our radar and can easily get us into trouble. Lawsuits, verbal attacks, and even violence can occur. It is best to get regular consultation in these cases, and to get enough emotional support for ourselves to remain objective and caring, without becoming enmeshed in our cases.
The adversarial court process attracts those with high conflict personalities, who come in to it with adversarial thinking and often have a hard time leaving the court system. They think in terms of “allies and enemies” – “either you’re with me or you’re against me.” It does not take much for the client – or the opposing party – to transfer this thinking onto your own relationship with the HCP. These clients are desperately needy, yet also willing to harm others in a distorted sense of self-defense. This is generally not obvious at the start, so it is very important to maintain reasonable boundaries and a healthy skepticism for your own protection in these high conflict cases.
Over the course of the last six hours, you have learned about High Conflict Personalities, their dynamics in court cases, and opportunities and risks for you as a therapist. This is an exciting area and your involvement in these cases can be significant and satisfying over the coming years. Researchers indicate that HCPs will increase in prevalence over the next several years.
With the above information in mind, mental health professionals are encouraged to assist legal professionals and clients involved in cases with high conflict personalities.
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