The parties are close, but both resist one final move. That is the predictable third impasse in many mediations. Some people resist because of stubbornness and others because of ambivalence. Mediators can borrow concepts from Motivational Interviewing to help ambivalent parties resolve their disputes.
Motivational interviewing is well known in the field of addiction counseling. One way to deal with addicts is to confront them, label them, and tell them they must change. Many Oregon mediators use that authoritarian style – “It’s a good deal; take it.” Motivational interviewing uses a different approach.
Motivational interviewing emphasizes personal choice and responsibility. The counselor / mediator acts more like a collaborator to identify the best option rather than the expert telling them what is the best for them. Too often, authoritarian mediators cannot know what is best for a person because, often, they do not elicit client’s concerns, which may have nothing to do with the merits. (“I’m so angry! It’s the principle! I can’t take off two weeks for trial. My child needs to get to soccer.)
William R. Miller and Stephen Rollnick are credited with advancing motivational interviewing. The articulations of the prinicples and process have evolved over time. In their classic book, Motivational Interviewing: Preparing People to Change Addictive Behavior, they articulated five general principles to guide motivational interviewing.
The first is to Express Empathy with warm and reflective listening. So, the first step is to ask the broad, open-ended questions. Do not judge the answers (at least not initially). Instead, accept the client’s feelings and positions and reflect them. “Yes, you can go to trial, and it might it might be your best choice. Let’s keep working at this mediation so you get a sense of it.”
The second principle is to Develop a Discrepancy. For addiction counseling, that means a discrepancy between their broader goals in life and the drinking that is interfering with those goals. Similarly, as a mediator, I’ll help parties comprehend the different impacts that settlement or trial will have on achieving their goals. In motivational interviewing, as in mediation, the most persuasive voice is the client’s own voice. So, I try to get the client to state for themselves the pros and cons rather than authoritatively declaring them, unless the parties ask me for my opinion.
The third principle is Avoid Argumentation. Just as counselors do not want addicts defending their cocaine use, mediators do not want the parties arguing the benefits of trial. When a mediator hears the party pushing for trial, then the mediator should change approaches.
Motivational interviewing’s fourth principle is to Roll with Resistance. If you do not argue back, then what? Go back to the goals. “Tell me how trial will accomplish your goals? If your goal is to protect others, have you considered other avenues such as reporting them to the government agency?” Actively problem solve with clients. Help clients solve THEIR problem, THEIR way.
The last principle of motivational interviewing is Support Self-Efficacy. In addiction counseling, the psychologist fosters the message that “you can overcome your challenge.” For mediators, optimism that the case will settle is a critical component and must start with the first communications. Then, mediators must keep the parties moving forward and praise every step.
The five principles of motivational interviewing have evolved to four processes, which are:
- Engaging, which involves raising the issues and hopes, and establishing a trusting relationship. In mediation, establishing rapport is critical and one of the few factors established as important for success by empirical study.
- Focusing, which refers to narrowing the discussion to the concerns that the clients want to change. Similarly, once mediators give both sides a full opportunity to unload all of their concerns, then mediators must focus the parties. I think of mediation as a big funnel.
- Evoking, which refers to getting clients to increase their own desire to change, readiness to change and confidence to change. In mediation, we try to talk about putting the dispute behind them and how that would feel compared to the work, stress, costs, and risk of trial.
- Planning: helping clients with practical steps to move forward with the change they want. Typically, parties in mediation have their lawyers to help them execute their decisions.
For me, studying Motivational Interviewing is like cross training. It reinforces many of the well-accepted concepts in mediation. Ultimately, I want to help people resolve their lawsuits. Like any professional, the more I study and practice mediation, the better I can serve others.
© 2015 Jeff Merrick