ADR CORNER
ADR CORNER
Mediation with High-Conflict Parties: Practical Guidance for Mediators and Attorneys
KIMBERLY M. KOSTUN
Mediation is often described as a cooperative, problem-solving process. But when high-conflict personalities are involved, it can feel less like building consensus and more like navigating a minefield.
Whether in family law, probate disputes, commercial litigation, or personal injury claims, high-conflict participants can derail discussions, resist compromise, and escalate tensions. Effectively managing these dynamics is essential to reaching durable agreements and protecting clients’ interests.
I. Understanding High-Conflict Personalities
High-conflict parties are more than“ difficult” clients or opponents. They tend to exhibit entrenched thinking and behavioral patterns that make resolution challenging, including:
1. Preoccupation with blame – Externalizing responsibility and viewing themselves as entirely right.
2. All-or-nothing thinking – Viewing compromise as personal defeat.
3. Emotional volatility – Allowing emotions to override logic or legal realities.
4. Poor self-regulation – Reacting disproportionately to perceived slights.
5. Persistent conflict generation – Continuing to create disputes even after resolution.
These traits complicate the collaborative process for attorneys, mediators, and opposing counsel. While mediators maintain neutrality and facilitate settlement discussions, attorneys must anticipate and manage the impact of these behaviors.
II. Pre-Mediation Preparation
Florida mediators are trained to preserve neutrality, maintain confidentiality, and facilitate open discussions between the parties. They are not tasked with changing a party’ s personality. Attorneys play the key role in preparation:
1. Manage Expectations Early Explain the mediation process, possible outcomes, and the need for strategic compromise. Stress that mediation is a forum for resolution, not vindication. 2. Identify Emotional Triggers Flag sensitive topics in advance and develop de-escalation strategies. Consider providing the mediator with a confidential pre-mediation statement addressing these issues. 3. Organize Facts and Offers Prepare evidence, documentation, and proposed offers to reduce opportunities for distortion or delay. 4. Set Communication Boundaries Define acceptable communication with you, opposing counsel, and the mediator— before and during mediation.
III. Strategies During Mediation
1. Use Shuttle Mediation Keeping parties in separate rooms can reduce tension and allow for more focused discussions. 2. Leverage the Mediator as a Buffer A skilled mediator can reframe inflammatory statements, test reality, and redirect discussion toward solutions. 3. Focus on Interests, Not Positions Help clients identify underlying needs rather than clinging to rigid demands. 4. Maintain Composure High-conflict parties often thrive on emotional escalation. A calm, professional demeanor neutralizes that tactic. 5. Take Breaks as Needed When emotions run high, pause to allow parties to regroup and reassess.
IV. Post-Mediation Follow-Up
If a settlement is reached, Florida Rules require that all terms be reduced to writing and signed by the parties and counsel. If mediation fails, debrief with the client to assess what worked, what did not, and plan the next steps for negotiation or trial.
Conclusion
Mediating with high-conflict parties is not about“ winning” in the room— it is about guiding the process toward a resolution that is durable, enforceable, and in compliance with Florida’ s mediation framework. In a system where mediation is central to case resolution, mastering these strategies can mean the difference between prolonged litigation and a lasting settlement.
Equally important is the collaboration between attorneys and mediators when dealing with high-conflict personalities. By sharing insights about client triggers, communication patterns, and settlement priorities, attorneys equip mediators with the tools needed to anticipate challenges, manage emotional escalation, and keep discussions on track. This partnership not only improves the chances of reaching agreement, but also ensures that the resolution is thoughtfully crafted to withstand future disputes.
Kimberly M. Kostun, Esq. is partner with Guffey & Kostun Law Group, LLP with offices in North Palm Beach, Boca Raton, Boynton Beach and Pennsylvania. Ms. Kostun practices law in Florida, New York and Pennsylvania. Ms. Kostun, as well as her partner Gordon Dieterle, Esq. are Florida Supreme Court Certified Circuit and County Mediators and can be reached at KKostun @ guffeykostunlaw. com or Gdieterle @ guffeykostunlaw. com or by phone at at 561-734-5552.
For additional ADR tips and resources, go to www. palmbeachbar. org / alternativedispute-resolution-committee.
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