Motivational Interviewing – the next frontier for family lawyers?

What on earth is Motivational Interviewing (or MI), I hear you cry? Is it some sort of technique where you gee people up, like one of those people who rubs boxers on the shoulders before they get into the ring? No, not really.

Nor does it apply only to interviews with a capital I. It’s absolutely not something that you’d see Ted Hastings use down at AC12 in Line of Duty.

In short, MI is a therapeutic approach to working with clients which involves drawing out (or evoking) their own motivations to change or to act in ways that are beneficial to them.

Are you trying to turn lawyers into therapists?

Er, no. This isn’t about becoming a therapist. It’s about family lawyers and mediators working in a more psychologically-informed way.

MI techniques are very much in keeping with the evolution in family law towards a more holistic approach, particularly as firms begin to offer the “one couple, one lawyer” model. In recent years, the role of the family lawyer has become less and less about advising clients in an individualistic, solely legalistic way. More and more, it has become about influencing and advising individuals and couples in a holistic way, taking into account the whole picture and the material and emotional needs of the whole family.

Gone are the days of a lawyer saying “We only do the law. We don’t do the feelings.” The two are often indivisible. And a good family lawyer/mediator is one who is emotionally attuned to their clients as well as being technically sound.

So, what is MI?

MI has been described by Miller & Rollnick in Motivational Interviewing: Helping people to change (2013) as a:

“collaborative, goal-oriented style of communication with 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 the person’s own reasons for change within an atmosphere of acceptance and compassion.” (p29)

So, it’s all about how you are with clients and how you talk to them. How you can influence them in positive ways. The crucial thing about MI is that it is not about going all-out trying to persuade clients to either do or not do certain things. It’s more subtle than that.

The “motivational” bit in MI refers to drawing out the clients’ own inclination towards positive actions and growth. This emanates originally from the humanist school of psychology and the psychologist Carl Rogers. He believed that, ultimately, we all have a desire towards healthy personal growth or positive change. And that the right kind of conversation with a helpful third party can draw that out of us.

Where does it come from?

MI was initially introduced as a way of working therapeutically with clients with addiction problems. It was in response to the realisation that the confrontational way of treating those with such problems, ie attempting to use shame as a way of encouraging them to change, was not working.

It’s also increasingly used by practitioners who work with children and families in the field of social work. Many of the professionals who work with parents with addiction problems and children in care proceedings at the Family Drug & Alcohol Court (FDAC) use an MI approach. Social workers working in child protection are increasingly trained in MI. It is particularly helpful in situations where previously practitioners have had a tendency to tell clients what to do. And where that approach hasn’t worked.

How to influence

As alluded to above, MI is about certain techniques but, more than that, it is about a way of being with clients. It is about a philosophy and a spirit of how to practice which is about drawing out or evoking the clients’ own motivations, rather than seeking to implant our ideas into them.

Through using MI, we are seeking to influence clients to the extent of helping them to recognise what is in their best interests and that of the family as a whole.

The traditional way we’re taught to influence clients as lawyers is via directive methods. Persuading clients through logical arguments, rationality and legalities. The problem is that all of the training that we go through to learn such things failed to acknowledge basic psychology.

There was a failure to recognise that our clients (and particularly family law clients) are rarely operating from their rational brains. That isn’t meant to sound insulting. It’s an acknowledgment that, when any of us feel vulnerable or upset or traumatised, we operate from our right brain (associated with feelings and emotions) rather than our left brain (the pre-frontal cortex associated with logic and analysis). So when, as lawyers, we seek to persuade our clients using directive means relying on logical arguments, we are talking to them in a different language to the one they understand. Their feelings will hold sway over all our rational, meticulously crafted arguments.

And, often, if we’re too directive, our arguments actually have the opposite effect to that which is intended. We turn our clients off to our way of thinking. Their inner rebel comes out in response to our authoritarian approach. We might even make them want to do the opposite of what we’re suggesting.

Does it help with lawyer wellbeing?

I believe that learning and practising MI skills also increases lawyer wellbeing by the back door -because equipping lawyers with the tools to do their job in a more intelligent way, which has more impact, will reduce lawyer frustration and create better client relationships. It also helps with the perennial issue of lawyer-client boundaries. No more evening calls with clients trying desperately to persuade them of your point of view. Leaving them a bit of autonomy and agency instead by using MI techniques can have amazing results.

To change or not to change?

In the family law context, the “change” talked about in the description of MI above is relevant where we have clients who come in who are entrenched in their approach and beliefs, for example about how to handle children arrangements, perhaps criticising or seeking to exclude the other parent. It could also apply to finance cases where our clients behave in self-defeating ways or are entrenched in their views that they should have an award or settlement that is larger than reasonable.

The Righting Reflex

MI thinking is that the tricky dynamics that develop between us and our clients arise due to something called the Righting Reflex. This is the trap that lawyers and other “helpers” often fall into of, in Miller & Rollnick’s words, “trying to fix problems by correcting, persuading, educating, offering solutions or providing reasons for change”.

You might be thinking “yes, but isn’t it the job of the lawyer to be directive and give advice?”. Yes, obviously as lawyers we have to educate and advise a fair bit. But should we do so in such a directive way in matters as emotive as family law? I believe often not. We often end up overegging the pudding in our interventions, to our and the client’s detriment.

Think of those clients who insist on talking about their ex on social media for example. Or who badmouth their ex in front of the children. Sometimes they listen to our attempts to persuade them not to, our arguments that any judge or adjudicator looking at their case will not view it kindly. But often they seem to carry on regardless. Or they pay lip service to our advice then slip up again shortly thereafter.

This isn’t just a problem for them and their fractured families. Our failed attempts at persuasion create frustration and a feeling of uselessness for us. Over time, that is a massive contributor to the burnout that many family lawyers experience.

And yet, when our clients do resist or ignore our advice, perceived wisdom is simply to go in harder. To keep trying. To carry on explaining the dangers. In email, on the phone, in person. This sets off something called psychological reactance in the client (aka stubbornness and more resistance), making them even less likely to do as we recommend.

There are no difficult clients. Only difficult relationships

Does any of this resonate with you so far? Do you often work with clients who are resistant to your advice? And who act in ways which are detrimental to them and/or their children?

Lawyers often talk about difficult clients. But what do we mean when we say clients are “difficult”? Generally, what we mean is they don’t take our advice and are resistant to us telling them what the right thing to do is.

MI is based on the premise that resistance in clients emanates from the relationship between the two of you, rather than them innately being a difficult and resistant person. I realise how annoying that statement may be. But hear me out!

There are of course some clients who are a nightmare to work with and who would be completely fixed in their erroneous views, no matter the circumstances. But there is also another (rather large) group of clients who can be slightly more malleable if we work with them in an intelligent way. These are the clients we can influence through MI.

MI is about understanding that, if you show some respect for your client’s agency and autonomy rather than bombarding them with advice, better outcomes often follow. And if you allow space for them to come up with their own reasons for doing things differently (guided by the right questions from you), any changes they make are more likely to stick.

We need to talk about ambivalence

Not all our clients are out-and-out resistant to our advice of course (now that would be exhausting!). Many are ambivalent. Take for example your classic child arrangements case. Many parents know in theory that any judge or arbitrator that gets involved will be making decisions on the basis of what’s in the best interests of the child. A mum who says no to her child spending overnights with their dad may well have ambivalent feelings about whether or not that would be in the child’s best interests. So, on some days it’s a hard no (perhaps if dad has annoyed her or she thinks he’s upset the child the previous day). On other days she might feel slightly less entrenched in her views. This is where MI comes in. It offers a way to talk with clients who are resistant or ambivalent in a way that steers them in the direction of what’s in their own and the child’s best interests. As opposed to us simply telling them what to do.

Skills

In MI we talk a lot about OARS. These are our base skills. Here is a rough guide:

Open questions – questions that clients can’t just give a yes or no answer to.

Affirmations – making some sort of positive statement about the way the client has handled something.

Reflections – not repeating but sharing back with them your understanding of something they’ve said.

Summaries – bringing together the strands of the conversation so far and reflecting it back to them in your own words.

So, for the purposes of our above example, some MI-consistent things to say might look like this:

Open questions – “if there were to be overnight arrangements that felt OK for you, what might that look like?”

Affirmations – “it seems like this is a difficult and emotional thing to think about but you’re trying, which is great”

Reflections – “so, it feels like it’s hard to trust [dad] to take the kids for overnight stays?”

Summaries – “so, just to bring everything together, it sounds like you have some misgivings about overnight stays and, at the same time, on some occasions, they might feel OK?”

So far, so similar to mediation skills.

MI takes things further than mediation though because, unlike in the former (where you provide information only), MI skills can be used in an advice-giving scenario as a lawyer.

Also, as an MI-consistent lawyer, you can use the OARS to gently steer the clients in a direction that you believe to be in their best interests (and those of any children). You don’t have to be Mr or Mrs Impartial.

Planning

MI also contains a souped-up version of the reality testing stage in mediation.

In the latter, once it looks like people are nearing a possible outcome or at least narrowing the range of outcomes, a mediator will reality test the outcomes to see how suitable they are.

In MI the planning stage includes this and also pre-empts future difficulties in a more detailed way. So, to take our scenario above, our MI-consistent lawyer would be using the following questions: “What do you imagine could be the hardest bits of overnights for you? What are some ways in which you could handle those? What resources can you draw on?”

Note the way in which the second two questions are phrased. These sorts of questions are a key component of MI and should be in the toolkit of every family lawyer. Yes, they are open questions but I also like to call them “no way out” questions. Why? Because they push the client to get thinking about their options and they have to come up with some ideas rather than relying on the lawyer or mediator to do it. They send a subtle message to clients – that it is not always on the lawyer to find solutions. The best lawyer-client relationships are collaborative, with the lawyer acting as a guide rather than as the director running the whole show. And using these sorts of questions with clients sends that message very clearly.

Change talk and sustain talk

Coming back to ambivalence, a key way in which an MI-consistent lawyer can gently steer clients using the OARS is by recognising clients’ change talk and sustain talk, and responding appropriately. Sustain talk describes those comments your client makes when they’re deep in their entrenchment. So, in our example the client might say: “There’s no way I’m allowing overnights. He can’t be trusted.”

Change talk describes clients’ comments that indicate more flexibility or a willingness to adapt. So, something along the lines of “well, he did have the kids overnight once without any drama or them coming home upset” might be an example of change talk for the purposes of our example.

A skilful MI-trained family lawyer, when reflecting and summarising back to a client, can gently emphasise the change talk they’ve heard and choose not to dwell on the sustain talk. In this way, they elicit and strengthen the clients’ intrinsic motivation towards “healthy” behaviour. We evoke their desire to develop more positive familial relationships. We focus on change talk in order to steer the conversation and the client in the direction we believe is best for the client. This isn’t manipulation but a way of being influential with the client in a way that is in their best interests.

How do we do this using our OARS? Here are some examples:

Client: “Andy (dad) winds me up a lot but I guess I need to think about how I handle that.”

Lawyer: “You recognise that, even though it’s hard, it is something you can do, to think about how you respond to those tense situations.”  (Reflection/Summary)

Or:

Client: “I know he keeps trying to have overnights with them but I think it’s just for show – I don’t buy that he really wants them.”

Lawyer: “So, you are doubting his motives but, at the same time, you can see he’s persistent and keeps trying.” (Reflection/Summary)

Advice-giving

Finally, let’s think about how we can give advice in an MI-consistent way. To do so means to retain an “emphasis on empathy, collaboration and the promotion of autonomy” (Motivational Interviewing for working with children and families, Forrester, Wilkins & Whittaker (2021), p101).

In practice, it might look as if we’re doing so in a much more tentative way than most people might expect of lawyers. Again, there are sound psychological reasons for this.

The classic MI model for giving advice is Elicit – Provide – Elicit.

1. Elicit – this first stage is where you find out where the client is at. Ask them what their understanding of the situation and expectations of the process are. This means you start to develop a relationship with a collaborative feel from the start. It also enables you to pitch your advice in the right way because you know what their beliefs and understanding of the processes are.
2. Provide – before giving advice, it’s wise to use a preamble where we effectively seek permission to do so. For example, by saying something like “Is it ok if I offer some thoughts now?”. Sounds weird I know. But securing the client’s permission before you give the advice creates that sense of agency for them. It also makes it more likely they’ll listen to your advice.
3. Elicit – finally, gauge their feelings again. Ask open questions about how the advice sits with them, and see if anything you’ve said doesn’t make sense to them. Inviting them back into the conversation again creates that sense of agency. You get to test their comprehension of what you’ve said – very helpful in a world where clients are prone to misunderstanding and misinterpreting advice. This final stage also often includes a bit of planning and reality testing. Again, anticipating in advance what circumstances will make it difficult to follow your advice gets the client to forward plan and makes it more likely they’ll stick to what you’ve discussed.

Looking to the future

As the way we approach working with families continues to evolve, I believe the role of the family solicitor will take on more and more influences from the coaching and therapeutic world. It’s already the case that the influence of mediation, collaborative law and now the “one couple, one lawyer” model has brought a recognition that being less directive doesn’t equate to being less effective – quite the contrary. Motivational Interviewing offers us a way of working with clients which recognises and works with the psychology of the relationship. And by learning these skills and working with clients in this more intelligent, emotionally attuned way, the family solicitor of the future won’t be so vulnerable to burnout caused by the stress of drawn-out attempts to persuade clients in ways which don’t work.