High Conflict People in Legal Disputes

Introduction to First Edition (2006)

In 1992, after a dozen years as a mental health professional, I became an attorney. I went to law school to become a full-service mediator: to be able to write binding agreements, inform clients about the law and have the credibility of being an attorney.

While I enjoyed counseling, I was particularly drawn to mediation, a method of resolving interpersonal disputes out of court in a counseling-like process. I had been involved in mediation since I heard about it in 1975, mostly as an unpaid volunteer handling a wide variety of disputes in schools, communities, businesses and families.

By the late 1980s, the courts were promoting mediation and I realized that I could make it a paying career if I became an attorney.

When I opened my law and mediation office in 1993, I decided to keep my beeper. I still had a dozen counseling clients and still occasionally received a crisis call. “I’m in the kitchen. I have a knife and I feel like hurting myself,” one of my clients with Borderline Personality Disorder1 cried one Saturday night after beeping me as I waited in line outside a movie theater.

I was familiar with her case. “Put the knife away,” I insisted. “Go to your room and write out two cognitive therapy worksheets. Bring them in when we meet next week. And remember what we talked about.”

And she did.

But such calls were rare from my counseling clients. It was my law clients in various states of crisis who beeped me the most.

“We have to file a new declaration. It’s absolutely urgent,” said one new client.

“But it’s the weekend,” I explained. “I can’t file anything until Monday.”

“It’s so important I called you right away, so you could think about it.”

The most common beeper calls were always about visitation crises. “He’s twenty minutes late. He always does this to me. I can’t wait all day. You have to do something about this!”

Most of my law clients handled these problems just fine on their own, or we addressed them during office hours and took appropriate legal action. But some of my attorney clients were frequently overwhelmed by emotions, suddenly and intensely angered, and constantly demanded that someone else solve their problems for them. After a decade as a psychotherapist, the pattern was familiar. I could handle a few personality disorders in my attorney caseload. But this wasn’t why I went to law school. I wondered if many other attorneys had clients with personality disorders—and by the end of 1993 I got rid of my beeper.

When I set up my law and mediation office, I was also approved to be a superior court mediator for civil disputes filed with the court that were headed for trial. I mediated and settled business contract disputes, personal injury lawsuits, probate cases, partnership dissolutions and sexual abuse settlements. Many of the cases were car accidents with minor injuries that were hard to verify. But I particularly remember one case that did not settle.

We were sitting around a conference table with the plaintiff, Mrs. Payne, in a neck brace, as was common in these cases. Also present were her attorney, the defendant car insurance representative, and the attorney for the car insurance company. After a couple of hours there was no agreement. I had met with everyone together, separately with each party, and separately with each attorney, all to no avail. The insurance company said it could not pay for a claim for which it had no corroborating evidence. No bones were broken, no bruises were evident and the car was minimally damaged—plus, the repairs had already been paid for by the company. But Mrs. Payne was adamant about getting paid something for her pain and suffering.

“I don’t care if I don’t have any evidence to prove that I was injured. I know I was hurt and I still feel the pain. I’ve been taken advantage of all my life and somebody has to pay for it. I don’t care what anybody here says, I’m going to have my day in court.”

Mediation is not binding and it is completely confidential. Nothing said in the mediation process could be repeated in court. I am sure she had her trial—her day in court.

However, with the burden on her to prove she was injured, it was extremely unlikely that she would obtain a favorable judgment without any supporting evidence. Legal cases are lost all the time for insufficient evidence.

But what struck me most about this particular case was her statement, which seemed all too familiar: “I’ve been taken advantage of all my life and somebody has to pay for it.” She seemed completely stuck and rigid in her thinking, and nothing that was said or done in two hours had any impact on her. I had other car cases that didn’t settle, but this one stood out. The reason that Mrs. Payne wanted to go to court seemed to have little to do with the legal issues in her case—but a lot to do with her personality.

Only a small portion of my practice has been civil mediations. My primary focus has been family law, about half as a divorce mediator and the other half as a divorce attorney.

The vast majority of these divorce cases settled without a court hearing or trial, using the guidelines and laws established over the past thirty years of no-fault divorce law, plus a little give and take.

Of the cases that went to court, I started to see a pattern. It was rare that the parties couldn’t agree on the law. More often, they couldn’t agree on the facts. One or both parties was misbehaving or misperceiving. Substance abuse, child abuse, domestic violence and lying about money were the primary issues, but in the cases that went to court one or both parties were stuck in the belief that “it’s all your fault.” Since the vast majority of my cases resolved out of court, it became clear to me that this rigid “it’s all your fault” position didn’t come from the divorce, but from within. It had more to do with the personalities of these parties.

From the above experiences and many others like them, I have become convinced that undiagnosed and untreated personality disorders are driving much of today’s litigation— and that this trend is rapidly increasing. Yet few people recognize this. Judges express concern about “vexatious litigants” and “frequent filers,” attorneys complain about “difficult clients,” and mental health professionals talk about “high-conflict families.” But few of these legal professionals recognize the significance of personality disorders in these disputes.

During the 1990s I found this lack of shared knowledge frustrating, so I decided to teach others about personality disorders in court cases. In 1998 I wrote an article entitled “How Personality Disorders Drive Family Court Litigation.” I sent the article to therapists, attorneys, mediators and judges in San Diego, I put it on my website, it was published in the magazine of the Solano County Bar Association, and a shorter version appeared in early 1999 in California Lawyer, the state bar association magazine.

This led to a few seminars for attorneys and mediators, who were very responsive and asked for books on this subject. I could find none. Then I taught a law school course in the summer of 2000 called “Interviewing and Counseling (With an Emphasis on Difficult Personalities)” at the University of San Diego, where as an adjunct faculty member I also taught courses on negotiation and mediation. The students were fascinated to learn about personality disorders and potentially difficult clients. They consistently asked for more case examples, and this feedback encouraged me to expand the course materials into a book. However, my information remained focused on legal professionals.

I sent a book proposal to several publishers, but was told that the subject was too narrow to be commercially viable.

So I decided to publish it myself.

In 2002 I discovered a rapidly growing interest from several new directions. I offered a seminar on high-conflict personalities (HCPs) at the Association of Conflict Resolution annual conference in 2002 and delivered it to an overflow audience. I expected attorneys and mental health professionals, but surprisingly the majority of attendees worked for government agencies and educational institutions, with several from other countries.

Also in 2002, the Judicial Council of California asked me to co-present a seminar on parental psychopathology for family court services counselors in southern California.

While they were well-trained in issues of substance abuse, child abuse and domestic violence, they were eager for training in personality disorders from clinicians who had been directly involved in mental health diagnosis and treatment.

As I was finishing this book, the subject of HCPs came up in discussions with friends in many different fields. They told me that the practical tools I was offering would be useful to anyone, as HCPs were increasingly showing up in schools, health-care facilities, businesses and various other professions.

Most surprising of all, I...