Motivational Interviewing Tools to Enhance Mediation Outcomes, 0721 COBJ, Vol. 50, No. 7 Pg. 24

PositionVol. 50, 7 [Page 24]

50 Colo.Law. 24

Motivational Interviewing Tools to Enhance Mediation Outcomes

No. Vol. 50, No. 7 [Page 24]

Colorado Lawyer

July, 2021



Applying motivational interviewing techniques in mediations increases the likelihood of settlement. This article explores the use of motivational interviewing tools to enhance agreements.

Motivational Interviewing (MI) is a research-based method of achieving positive behavior change.l The use of MI techniques in mediation has been proven to significantly increase the likelihood of settlement and improve mediation outcomes.[2] This article equips mediators with MI skills to help participants achieve optimal settlement outcomes. While the focus here is on mediators, MI skills are equally useful to negotiators generally.

Why Motivational Interviewing?

MI is commonly used across fields from addiction therapy to medicine. Doctors, dentists, psychologists, social workers, and probation officers are now routinely trained in MI due to its high effectiveness in helping people positively change their minds and their behaviors.3 The New York Times recently touted MI as perhaps our only hope for successfully reasoning with unreasonable people in a highly polarized political and cultural climate.4 Recent scholarship shows that MI is also highly effective in family law mediations,5 and judicial officers are increasingly implementing MI strategies in communicating with parties in their courtrooms.6

MI embodies a style and set of strategies to create an environment supportive of positive change and thus increases a person's motivation to change.7 These strategies include using collaborative, goal-oriented language to emphasize personal choice and responsibility and support change in a way that aligns with a person's own values.8 MI capitalizes on the interviewee's own motivation and desire for change, and it protects self-determination, so it helps people achieve their own objectives.9

Recently, MI has been applied to the mediation context in select studies, which reveal that the mediation field has been missing out on the benefits of MI for far too long. Over 30 years of research in the behavior change field (such as substance abuse and other counseling situations) have shown the use of MI to be an evidence-based practice that improves outcomes, with outcomes defined as effectively helping to positively change attitudes and behaviors.[10] MI is also being employed to address conflict resolution in the areas of restorative justice and judicial officer training.'' Researchers have documented three major benefits to applying MI to mediation.12 First, MI improves mediators' skill sets.13 The mediator's role is to help parties create arrangements that will work best for them rather than to prescribe what the mediator personally believes is best.[14] Because mediators typically ask questions, summarize positions, and acknowledge emotions, Mi's framework complements many tools they already use.15

Second, MI increases trust between the mediator and mediation participants.16 When trust is present, participants are willing to be vulnerable because they have positive expectations, which allows them to be less defensive and more open to exploring new options. The extent to which parties allow themselves to be vulnerable depends in part on the mediator's skill in fostering participants' cooperation with the process and each other. MI enhances trust by emphasizing intrinsic motivations for change and employing compassion, empathy, and acceptance. "Therefore, participants are more likely to feel cared for and able to trust the mediator and the process.18

Third, MI improves mediation outcomes. Recent research comparing family law mediations with and without the use of MI found that family law mediations with MI had double the rate of full agreements than those without and a lower rate of no agreement than of those without.19

Making Conversations Directional

The research is clear that what an MI interviewer says and does affects the resulting communication evoked from the client.20 Therefore, the interviewer is not a passive participant in a conversation but rather an active guiding force.21 The research also shows that what the interviewee says affects that person's thinking and behavior. Accordingly, interviewers need to be aware that how they listen and respond affects what interviewees say, which, in turn, forms what interviewees do.22

Mediators are commonly trained in empathic listening styles, such as active listening. But unlike other empathic listening styles, MI is directional—it maintains a clear focus on a known goal that the participants, the setting, and the mediator together establish and maintain. Mediators can maintain Mi's direction by using three interviewing styles.

Guiding Instead of Directing or Following

MI primarily guides parties toward the goal to establish and maintain focus, instead of directing or following. There are three potential styles of any conversation: directing, following, and guiding.23

Using directing, the listener (here the mediator, but negotiators, including advocates, can also fill this role) provides the focus, which is rooted in the mediator's agenda. For example, the mediator might say, "I know you think the other party is being unreasonable, but it would really be better for you to settle this than to try to take that issue to court." This statement tells the participant why, from the mediator's perspective, it is in the participant's best interests to follow the mediator's advice.

The second style, following, is the opposite of directing. When employing this style, the mediator tries to understand the participant's agenda and allows the direction, momentum, and context of the conversation to follow accordingly. For example, a mediator might listen and reflect, "so you don't want to accept their offer," and allow the participant to vent about everything they think is wrong with the other side's position while actively empathizing with the participant's position. Here, the mediator follows the participant's lead with minimal control over the direction of the conversation. In the third style, guiding, the mediator and the participant collaboratively search for direction by using the mediator's expertise and the participant's agenda. For example, a mediator could say, "you have some concerns with this offer. What elements of the offer do you think we could work with?" This statement establishes that the mediator is working with the participant to move in the direction of agreement, but on the participant's terms. MI employs this style, instead of following or directing, in a delicate balance of empowering and supporting the client without overtaking the conversation.

Creating a Map

In almost every mediation, the parties, counsel, and mediator arrive with at least one shared goal: to reach an agreement. So in applying MI, the "positive change" to be reached is from a posture of disagreement to one of agreement. However, the participants' competing interests combined with heightened emotions often stemming from the conflict can create a difficult landscape to navigate in achieving the shared goal. Accordingly, the mediator's first task when applying MI is to decode the language spoken by the parties and counsel to identify ambivalence, change talk, and sustain talk so the mediator can effectively listen in a way that will bring about positive change.[24]


Ambivalence is the simultaneous presence of competing motivations for and against change.25 We all know this general definition, but media-tors seldom consciously identify ambivalence within their conversations and even less often respond to the ambivalence in a productive matter. This oversight is unfortunate because ambivalence is the most common place to get "stuck" on the road to change.[26] If mediators f ail to recognize ambivalence, participants are more likely to remain stuck in indecision and sustain their current attitudes and behaviors.

To understand ambivalence, mediators simply need to think of a habit they have that they want to change, like eating fewer sweets or working out more. The potential benefits of changing a habit (e.g., feeling healthier and more energetic, losing weight, or living longer) are clear, but competing motivations to not make the change (such as enjoying...

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