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Top tips For Managing Difficult Behaviours in the ADR Process

Top tips For Managing Difficult Behaviours in the ADR Process

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Have you ever come up against a difficult person in a mediation or negotiation? Ever had someone storm out of a joint session, or rock up on the day only to refuse to negotiate?

Tania Sourdin, Dean and Head of School of Newcastle Law School, has seen it all. With over 30 years of experience in dispute resolution and a special research interest in the area, she knows the challenges practitioners and parties face when trying resolve a dispute through ADR processes.

The LIV is delighted to have Tania Sourdin speaking at our upcoming Alternative Dispute Resolution Conference on 12 May 2017. We asked Tania to share her top tips for managing difficult behaviours in the ADR process.

  1. Consider your intake and assessment process before you begin

My first tip would be to think about your original dispute resolution training and consider what sort of intake and assessment process you should go through before you actually conduct the session itself. This will give you quite a lot to work with in terms of how you structure the session, who might need to be there to support people that have more obvious issues in the sense of behaviour, and it also enables you to do some preparation with people. The aim is to hopefully get them to a more constructive frame of mind using Harvard 7 element preparation tools or some other sort of preparation tool which requires a focus on interest and long term goals rather than just rights. So the first piece is probably what you do before people even get into your dispute resolution session. 

  1. Explanation is Key

The second piece is about the importance of procedural explanation which again is a core part of my dispute resolution processes. We know from the research around procedural explanation that explanation can actually help to reduce levels of stress and reduce the amount of cortisol that runs through people's bodies. So having procedural explanation and having it throughout the process as well as before the process can be really important in terms of reducing levels of stress. 

  1. Remember your Core Dispute Resolution Skills

The core dispute resolution skills around listening, reflecting, summarising, issue identification and to some extent reframing are core skills that can assist when people begin to display more difficult, obsessive behaviour. 

  1. Analyse the Behaviours and Where They Might be Coming From

If you're in a dispute resolution session where difficult behaviours are being exhibited then question what is actually causing the behaviour and who is responsible for it. I don't want to suggest that it's only litigants who may display difficult behaviours because sometimes it's a lawyer or an expert or another person and that can be problematic as well. In thinking about what's causing the behaviour it's important to consider whether it is a mental health issue or whether it is related to stress. There are good reasons why people might be stressed before they go into a dispute resolution process. They may not have slept well the night before or it might be very difficult for them to be in the same room as the person that they have a conflict with. If it's a mental health issue you may want to very carefully consider whether the person has some support, whether they're on medication, what the impact of their behaviour is on other people in the room and whether there are coaching or other strategies that can be useful to support a more rational form of engagement. 

  1. Employ Management Techniques

I use a few different techniques when difficult behaviours arise. One that I use which comes from Bill Eddy in the US is called the EAR technique. This means encoding some of your messages and responses with an Empathy, Attention, Respect, message - even when somebody says something which is difficult for you as a dispute resolution practitioner to deal with. Another technique is called the BIFF technique which is the Brief, Informative, Friendly, Firm technique. I think with all of these techniques we need to make sure we've got some useful guidelines around how the session is going to run and how long it will go for. There are other more advanced strategies that I'll talk about in the session that I'm doing for the Law Institute, including strategies around options and decision making and whether or not you can limit the interchanges that occur once options are generated in more facilitated processes such as mediation. 

Want to learn more? Don’t miss our Alternative Dispute Resolution Conference on 12 May 2017 where Tania will be discussing strategies for dealing in difficult behaviours in the ADR process, and sitting on a panel with judges from the Supreme Court of Victoria to discuss the future of ADR.  


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