All too often, lawyers or their clients adopt a “my way or the highway” mentality.
This type of approach tends to be counter-productive when trying to determine how to best resolve a dispute.
What tends to result is the dispute does not get mediated but instead, ends up in front of judge.
As lawyers, we have an obligation to encourage compromise with the intention of settling the dispute.
How can this middle ground be effectively reached? I recently attended a seminar on “motivational interviewing” and believe that employing the techniques I learned can be effective in supporting compromise.
Motivational Interviewing is a collaborative, goal oriented style of communication that pays particular attention to the language of change. It is designed to strengthen personal motivation for, and commitment to, a specific goal by eliciting and exploring a person’s reason for change within an atmosphere of acceptance and compassion.
Our mission as lawyers should be to create a positive atmosphere conducive to change and to be persuasive and supportive, rather than coercive and argumentative.
We are trained to present the facts and impress upon our clients, a rationale argument as to why the dispute ought to be resolved as we see it through our legal eyes.
We cannot simply assume that because our clients seek legal advice, they will automatically accept our opinion as their lawyer. We need to take the time to build a relationship with our clients so as to earn the right to educate them.
There are four processes involved in motivational interviewing:
- Engaging – the process of establishing a mutually trusting and respectful, helping relationship.
- Focusing – the process by which you develop and maintain a specific direction in the conversation about change.
- Evoking – the process of eliciting the client’s own motivations for change.
- Planning – the process which encompasses both developing commitment to change and formulating a concrete plan of action.
The following are some suggested techniques and strategies that help apply the processes above:
Provide your clients with the opportunity to talk about what is most important to them. Use a sheet of paper with bubbles or circles with the key discussion items noted, BUT leave a few bubbles empty and encourage your client to fill in the blanks with what they want to talk about.
Avoid Interrogative Questions
Use language that helps you acquire a deeper understanding of your client’s perspective. Ask open ended questions “How would you like things to be different?” or “What makes you think you need to do something about…?”.
Ignorance is not Bliss
Accept that your clients may have some general knowledge and understanding of the law and are capable of making reasonable choices for themselves. Ask questions such as: ”What have you heard about the law with respect to…?” or “What would you like to know more about in terms of…?”
Pose your questions and comments using the phrase “From your perspective, it sounds like …”, not “The way I see it, …”.
Identify Discrepancy by Repetition
Summarize and/or repeat what your clients say. This practice may help your clients recognize that their meaning is not understood or that their position may be unreasonable. Respond by asking “If I understood you correctly, you said…”. This technique could help lead to compromise on their part.
Acquire a deeper knowledge and understanding of what is truly at the core of the dispute. An example of a good question might be “What are you most worried about if your former business partner gets to keep the business?” You may be pleasantly surprised that the real issue is not about the money, but about something more personal to your clients.
Resist the temptation to judge, blame or criticize your client’s feelings or beliefs. For example, if your client says she does not want to give her husband regular access to the children because he “just never shows up to pick up the kids as promised”, respond with “I understand that it may be difficult to try again” and suggest that access be gradually increased over a period of time as the husband fulfills his promises.
Accentuate the Positive
Recognize successes, whether big or small. For example, say to your client “You have made some big compromises over the last few months” or “Your visits with the children have been greatly appreciated by your former spouse”.
By using some of these techniques and strategies, motivational interviewing will hopefully help your clients work through their ambivalence and reluctance about changing their positions and get them moving toward a path of change.
At the end of the day, your clients are the only ones who can change themselves. You can certainly help, but you cannot do it for them.
You may want to take a look at the following You Tube video, The Ineffective Physician versus The Effective Physician, illustrating the differences between an interview that uses the techniques of motivational interviewing, and one that does not.
Written by: Dan Chow, Legal Counsel, Practice Management
 Miller, W.R. & Rollnick, S. (2013) Motivational Interviewing: Helping People Change, 3rd ed. New York: Guilford Press, pg. 29.
 Supra., pgs. 36 and 40.