Australia's National Principles for Resolving Disputes

The National Alternative Dispute Resolution Advisory Council (NADRAC) has developed seven national principles for resolving disputes. The Council has created the principles to set out an approach to dispute resolution that is consistent with better access to justice.

NADRAC states on their website that they:

advocate the consistent application of the National Principles ... as an important information tool to assist people in dispute in considering ADR as an alternative, or an addition, to litigation.

The principles are largely about using ADR when you have a dispute, instead of going to court (and still using ADR even if you do end up in court!) and to offer information about how ADR aims to work so that you know what to expect if you choose to use an ADR mechanism.

National Principles for Resolving Disputes

1. People have a responsibility to take genuine steps to resolve or clarify disputes and should be supported to meet that responsibility.

2. Disputes should be resolved in the simplest and most cost effective way. Steps to resolve disputes including using ADR processes, wherever appropriate, should be made as early as possible and both before and throughout any court or tribunal proceedings.

3. People who attend a dispute resolution process should show their commitment to that process by listening to other views and by putting forward and considering options for resolution.

4. People in dispute should have access to, and seek out, information that enables them to choose suitable dispute resolution processes and informs them about what to expect from different processes and service providers.

5. People in dispute should aim to reach an agreement through dispute resolution processes. They should not be required or pressured to do so if they believe it would be unfair or unjust. If unable to resolve the dispute, people should have access to courts and tribunals.

6.  Effective, affordable and professional ADR services which meet acceptable standards should be readily available to people as a means of resolving their disputes.

7. Terms describing resolution processes should be used consistently to enhance community understanding of, and confidence in, them.


If you would like to read more on NADRAC's National Principles for Resolving Disputes, click here.

How to have those discussions you've been dreading

It's 9am on a Monday. Your less-than-favourite customer has phoned and spoken with your colleague. He has demanded an immediate return phone call from you and said that he hopes you've "got up off your butt and sorted his problem out". Clearly you're in for a stellar day.

Before you delve into procrastination land and decide it might be better to take a mental health day, take pause and read the tips below on how to have those discussions you've been dreading with your less-than-favourite customer.

Tips

* Prior to calling the customer, analyse the information you have available to you. Plan what you want to say in the discussion. Anticipate what the customer may ask. Being prepared will make you feel more confident during the tough moments in the conversation.

* Give the customer your full name at the beginning of the discussion. This makes you accountable for what you are saying and also provides a personal reference for the customer.

* Manage your time. Don't make the call if you only have five minutes to spend with the customer. This will only create a pressure-cooker situation for both you and the customer because you will be watching the clock instead of focusing on the conversation.

* Listen. It seems simple and it is. It's also the most effective tip you can take away from this post. Listen to what is being said and acknowledge the customer's frustration. It will make them feel heard.

* Use silence. Silence is another incredibly effective tool to manage difficult discussions.

* Adapt your language to match the customers. People are usually 'seers' or 'hearers'. You can pick this up from the language they use. Be aware of this and try to match their style.

*Confusing discussions are like a maze. You need to guide the other party through the conversation so that you both come out the other end together. You do this by separating out the issues. Break them down, discuss them and join them up again later once you have educated the customer on the issue from your perspective.

* If the customer does have confusing information, let them speak first and then advise them you are going to clarify the information they have provided. This lets the customer know that you are going to ask them a number of questions.

* Let the customer know what you're going to say. Say what you need to say. Tell the customer what you said. An oldie but a goodie.


If you would like to read some more tips for difficult telephone discussions, click here.

Fix this now!

Those of us who work in the complaint handling world are all to familiar with customers wanting an immediate response to their complaint. "I want this fixed now", "call me back immediately" and "I'm just going to keep calling until this is resolved" are commonly used phrases by complainants, usually with some colourful language and punctuation thrown in.

But how do we deal with customers who have unrealistic expectations about complaint handling timeframes? The NSW Ombudsman has provided some guidelines and suggested scripts for dealing with customers who make demands about how their complaint should be handled, including insisting on an immediate response.

Suggested Strategies

• Inform the customer that it is your organisation and not them that decides how the complaint will be handled, by whom, and the amount of resources to be dedicated to it.
• Tell them clearly, transparently and firmly from the outset how the organisation intends to deal with the complaint.
• Be honest and upfront about what will and will not happen and what is and is not possible.
• Explain that an immediate response is not possible because there are other demands on the organisation's time, there are processes that must be followed and that the organisation deals with complaints on a first come first served basis - and there other complaints that came in before their own.

Suggested Scripts

Perhaps no-one has taken the time to explain the complaints process to you. Let me.

I appreciate that you want this dealt with right away. But I'm sure that you can also understand that I do have several other complaints that I have to deal with in addition to yours and which were brought to my attention first.

We deal with complaints on a first come first served basis, and as you can imagine, there are files that came in before yours. I'll be in contact with you in [days/ weeks] or sooner if I need more information from you.

Most people who complain to us consider that their complaint is the most important one and want us to deal with it right away or ahead of other complaints. That's not possible in practice.

It's clear this is important to you and you want it handled in a certain way, but there is a process that I must follow to make sure that it's dealt with appropriately and fairly for everyone involved.

I know you feel your complaint is urgent. I've assessed it and have decided I should call the officer/ organisation concerned. I'll be able to do this sometime this week/ I'll need some time to do this and then to receive a response from them. How about you call me [days/weeks] and hopefully I'll have some information for you then?

Ultimately, if you are unhappy with the way we are handling your complaint you are free to raise it with another organisation.


I sometimes use a variation of the last suggested script when a customer says that the organisation is delaying the handling of their complaint. In those instances I will suggest to the customer: If you consider that we are hindering the progression of your matter, I can close your complaint and you are able to take it up in another forum. A word of warning - you have to be very careful with the tone you use and your delivery of this phrase because it can be very easily interpreted as being antagonistic.

National Investigations Symposium

Last week I attended the 9th National Investigations Symposium at the Novotel Manly Pacific. The conference is run by the Independent Commission Against Corruption NSW, the NSW Ombudsman and the Institute of Public Administration Australia (NSW Division).

 

The aim of the forum is to help investigators and complaint-handlers to increase their investigative knowledge, skills and techniques by:

 

• hearing about best practice methods and new techniques
• learning from distinguished international and national keynote speakers
• attending workshops on managing difficult complainants, the basics about how to conduct an investigation, investigative interview techniques or administrative law for investigators.

 

One of the sessions I attended was a workshop run by the NSW Ombudsman on Unreasonable Complainant Conduct. With the support and involvement of the other Australasian Parliamentary Ombudsman, the NSW Ombudsman began a joint project on managing unreasonable complainant conduct in 2006. The project sought to minimise the often disproportionate and unreasonable impacts of difficult complainant conduct on organisations, their staff, services, time and resources by proposing a framework of strategies for managing such conduct.

 

The outcome of this project has been a practice manual titled Managing Unreasonable Complainant Conduct and the associated workshop. The manual provides an extensive range of strategies for dealing with unreasonable complainant conduct, including circumstances where it is not possible to terminate services to a complainant.

 

I found this workshop to be quite helpful as it was useful to hear of the experiences of other complaint handlers from different organisations. However, the star of this project is definitely the practice manual. Divided into seven parts, the practice manual provides guidelines on identifying unreasonable complainant conduct, preventing such conduct and responding to and managing the same. There are also some helpful suggested semantics for dealing with unreasonable complainant conduct. 

 

An example of one scenario that has a scripted response is around when a complainant presents in the organisation’s office and advises they will not be leaving until the matter is resolved. 

Complainant: I’m not leaving. You’ll have to carry me out of here.

Respondent: I’m not going to force you to leave. It’s really up to you what happens next. I’m going to leave and if you want to stay here a little while to think, then that’s fine. But if you aren’t gone in twenty minutes, we’ll have to contact security/ the police to escort you out of the office. It’s up to you.

This script is firm but fair. It reminds the complainant that they have a choice in their behaviour and also demonstrates that the respondent is in control of the investigative process. The majority of the scripts offered by the NSW Ombudsman have this same approach.  

Needless to say, I have placed this practice manual in an easy-to-reach location on my desk because I know it will become a highly used resource.

If you would like to know more about the NSW Ombudsman’s Managing Complainant Conduct project, click here.

To find out more about the 9th National Investigations Symposium, click here.

Mediation – opening and welcoming by the mediator

The mediator’s opening statement sets the tone for the mediation and helps the mediator develop a rapport with the parties. The mediator needs the parties to develop a confidence in the process, and in them as a mediator, otherwise they may as well all shut up shop and go home now. If a mediator struggles to gain the confidence of the parties that they are a capable person to mediate their dispute then it can be hard to reach a resolution, unless the parties are feeling particularly amicable (one can dream!).

The way that the mediator conducts the opening and welcome will of course vary with mediator style and personal preference. This is a good thing because this variation will mean that the mediator is explaining the process and setting the tone for the session in a manner that they will feel comfortable with and that in turn, will help the parties to feel more comfortable. One thing that is important though, regardless of personal style, is that both parties should feel that the mediator has a balanced approach. The mediator can easily achieve this by sharing their body language and eye contact evenly between the parties.

So what actually should be included in the mediator’s opening statement? The list below outlines the basics that are generally covered in the welcoming by the mediator.

·       Welcome and introductions including how people want to be addressed (Dr Roberts? Madame Mouse?)

·       Explain the role of the mediator including that they do not have a role in deciding the outcome

·       Explain the mediation process

·       Confirm the agreed timeframe for today’s session

·       Confirm the “Mediation Agreement” is understood and signed

·       Discuss confidentiality

·       Outline the guidelines of conduct

·       Remind the parties they are there to try to reach a resolution and obtain a commitment from all parties to begin

Mediation – the basics

The Australian National Mediator Approval Standards defines mediation as:

“a process in which the participants, with the support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to support participants to reach their own decision.”

The mediator may assist the participants to:

·       communicate with each other

·       identify, clarify and explore disputed issues

·       generate and evaluate options

·       consider alternative processes for bringing any dispute or conflict to a conclusion

·       reach an agreement or make a decision about how to move forward and/or enhance their communication in a way that addresses participants’ mutual needs with respect to their individual interests based upon the principle of self determination.

There are a number of different models of mediation. However, the process of mediation usually looks something like:

1.     Opening & welcome by the mediator

2.     Opening comments from the parties

3.     Mediator reflects on the parties’ comments and identifies the issues

4.     The issues are explored in detail

5.     Private sessions (discussions between be the mediator and each party privately)

6.     Negotiation

7.     Private sessions

8.     Closure

This process can vary depending on mediator style and the willingness of the parties to remain in a group forum to explore the issues. Steps 5, 6 and 7 can be repeated multiple times depending on the vigour with which the parties are negotiating!

A few other points to note in relation to mediator conduct ….

Mediators:

·       are impartial

·       manage the process

·       facilitate communication

·       help the parties to hear and understand each other

·       assist parties to evaluate alternatives and options

Mediators do not:

·       give advice

·       determine the solution

Tips for difficult telephone discussions

At one point or another, all of us have had to have a difficult telephone discussion. Those that work in the complaint handling realm are likely to have these discussions on a daily, if not hourly basis. So what are some tips to help make those difficult discussions as easy as possible? Well, as seems to be a continuing theme on this blog, planning and preparation are key. If you practice what you intend to say and make bullet points of the key points, this will help you to stay focused and keep the discussion on track if things become a bit heated.

Remaining calm and staying patient are also key to the success of the discussion. Where possible try to distance yourself and your emotions from the subject. In the case of complaint handling, the person delivering the bad news is usually the independent complaint handler so ditch feeling guilty when you have to deliver bad news – a review has been completed and an outcome found. If due process has been followed there is no need to feel guilty about the outcome.

Another hot tip is to check what the other person has heard. While you may think that you have delivered a beautifully phrased outcome, the other party may have misinterpreted what you have said. Checking for understanding is an often over-looked but very important step in handling difficult telephone discussions.

Some more tips for your review ….

Tips for difficult telephone discussions

·         Prepare for the discussion

·         Make some bullet points of what you want to achieve in the discussion and keep it nearby

·         Do a quick relaxation technique before you start

·         Be polite and patient

·         Breathe

·         Employ the broken record technique – keep saying what they are not hearing until they do

·         Check for understanding (e.g. What is your understanding of what I’ve just said?)

·         Collaborate (e.g Do you have any suggestions as to how this could work?)

·        If the discussion becomes abusive or threatening, ask them to desist, come back to the point and try again

·         If the abuse continues, end the call politely and calmly with an offer to try again later

·         Debrief with a friend/ colleague or superior.

Eight critical mistakes in negotiation

The Marana Consulting Group, in partnership with the Institute of Public Administration Australia NSW, has identified eight critical mistakes that are commonly made in negotiations.

Interestingly, several of these mistakes are the reverse image of Howard Raiffa’s 34 characteristics of an effective negotiator. For example, Raiffa cites planning and preparation as the number one characteristic of a successful negotiator and here, inadequate preparation is listed as the #1 critical mistake that can be made.

‘Talking too much and listening too little’ and ‘impatience’ are listed as critical mistakes while Raiffa lists ‘patience’ and ‘listening skill’ in the top 10 of his effective negotiator characteristics.

The two lists definitely highlight some common characteristics to employ and some to avoid the next time you enter into a negotiation.


Eight critical mistakes in negotiation

1.       Inadequate preparation

Preparation provides a good picture of your options and allows for planned flexibility at the crunch points.

 

2.       Ignoring the Give/Get principle

Each party needs to conclude the negotiation feeling something has been gained. 

3.       Use of intimidating behaviour

Research shows that the tougher the tactics, the tougher the resistance. Persuasiveness not dominance makes for a more effective outcome.

4.       Impatience

Give ideas and proposals time to work. Don’t rush things; patience pays.

5.       Loss of temper

Strong negative emotions are a deterrent to developing a co-operative environment and creating solutions

6.       Talking too much and listening too little

“If you love to listen, you will gain knowledge, and if you incline your ear, you will become wise.” – Sirach

7.       Arguing instead of influencing

Your position can be best explained by education, not stubbornness.

8.       Ignoring conflict

Conflict is the substance of negotiation. Learn to accept and resolve it, not avoid it.

To read the complete list of Howard Raiffa’s 34 characteristics of an effective negotiator click here.

To find out more about the training courses offered by the Institute of Public Administration Australia click here.

Hugh Mackay’s 10 Laws of Communication

In his book, The Good Listener, Hugh Mackay outlines 10 Laws of Communication. He highlights that people are more likely to listen to what you’re saying if the subject interests them or is something that is directly relevant to their circumstances. That a bit of a no brainer in my opinion.

Another point Mackay makes is that people are more likely to listen to you if you first listen to them. While this seems obvious, it’s an easy notion to forget. If we don’t demonstrate that we are equally interested in what the other party to the discussion is saying, they’re likely to dismiss both us and our comments.

For your review ….

The 10 Laws of Communication:

1.     It is what the listener does with our message that determines our success as communicators.

2.     Listeners interpret messages in ways which make them feel comfortable and secure.

3.     When people’s attitudes are attacked head-on, they are likely to defend those attitudes and, in the process, reinforce them.

4.     People pay most attention to messages which are relevant to their own circumstances and point of view.

5.     People who feel insecure in a relationship are unlikely to be good listeners.

6.     People are more likely to listen if we listen to them.

7.     People are more likely to change in response to a combination of new experience and communication than in response to communication alone.

8.     People are more likely to support a change which affects them if they are consulted before the change is made.

9.     The message in what is said will be interpreted in the light of how, when, where and by whom it is said.

10.  Lack of self-knowledge and an unwillingness to resolve our own internal conflicts make it harder for us to communicate with other people.

Not your traditional complaint platform

When I was travelling home from work recently I came across an article in the commuter newspaper about an online forum where disgruntled people write anonymous notes to their neighbours airing their gripes. While this is not the most traditional forum to complain in, it does allow aggrieved residents to let their neighbours know that Princess, the Persian cat, is not so cute when she is scratching up their new outdoor furniture.

This process of getting the matter off your chest is an important step in complaint resolution. One of the most commonly heard customer service complaints is ‘they just won’t listen to me’. Complainants need to have the opportunity to voice their concerns and to feel heard. Online forums are becoming an easy and anonymous medium for people to air their grievances, particularly when they are not yet ready to discuss the matter with the other party. It’s not surprising then that online complaint forums are becoming more and more popular. Business would do well to think about how they are going to address complaints aired in this manner.

I’ve selected a few of the disgruntled neighbour notes for you to read below. If you’d like to read more of the complaint notes for yourself, check out the website HappyPlace.com

 

Thoughts about the 34 characteristics of an effective negotiator

Generally when people think of a negotiation they think of two people taking extreme positions and then compromising until they reach a point somewhere roughly in the middle. This is true of most negotiations in business in Australia. In order to be effective in this type of negotiation, the two parties generally need to be able to postulate and engage standover tactics to make their opposition whimper into submission. Interestingly, in Howard Raiffa’s 34 characteristics of an effective negotiator from my last post, the willingness to employ force, threat or bluff ranks right down the bottom of his list.

Not surprisingly, the ability to persuade others ranks in the top ten at #8; however previous negotiating experience ranks at #19. Open-mindedness ranks at #21 and this too is something that shows the stand-over tactics most commonly employed in boardroom negotiations may not be the most effective way to approach these types of discussions.

The ability to think clearly and rapidly under pressure and uncertainty makes it into #3 and I agree with Raiffa on this point. I do find it interesting though that status or rank in organisation is down at #27. It may serve some businesses well to realise that their ‘top dog’ may not be their best negotiator and this could also be a confidence boost for the ‘underdog’ in a negotiation to know that their rank in the hierarchy of things really isn’t that important.

Raiffa’s list made me reconsider the characteristics of an effective negotiator that I previously held in high esteem. If this list was more widely reviewed then perhaps boardroom negotiations might be more successful then they currently are.

34 Characteristics of an Effective Negotiator

I stumbled across this list of characteristics while I was doing some research on how to be a better negotiator. It seems the fellow who compiled the list of traits, Howard Raiffa, knows what he’s on about. Howard has been the joint chair of the Harvard Business and Harvard Kennedy Schools and has been awarded several honorary doctorates (including one from, you guessed it … Harvard) for his lifetime contributions to the field of decision science and his work in conflict resolution.

The list appears in Howard’s book “The Art & Science of Negotiation”. At first glance, it’s interesting to see how particular characteristics out rank others that would usually be considered more effective skills for a negotiator. For example, debating ability is listed at #24 while integrity is at #7. I realise that a review of the traits themselves probably requires it’s own blog post so for now I’ll leave you to peruse and ponder the list below. For your reading pleasure…

1.     Preparation and planning skill

2.     Knowledge of the subject

3.     Ability to think clearly and rapidly under pressure and uncertainty

4.     Ability to express thoughts verbally

5.     Listening skill

6.     Judgement and general intelligence

7.     Integrity

8.     Ability to persuade others

9.     Patience

10.  Decisiveness

11.  Ability to win confidence and respect of opponent

12.  General problem-solving and analytical skills

13.  Self control, especially of emotions and their visibility

14.  Insight into others’ feelings

15.  Persistence and determination

16.  Ability to perceive and exploit available power to achieve objectives

17.  Insight into hidden needs and reactions of own and opponent’s organisation

18.  Ability to lead and control members of own team or group

19.  Previous negotiating experience

20.  Personal sense of security

21.  Open-mindedness (tolerance of other view points)

22.  Competitiveness (desire to compete and win)

23.  Skill in communicating and co-ordinating various objectives within own organisation

24.  Debating ability (skill in parrying questions and answers across the table)

25.  Willingness to risk being disliked

26.  Ability to act out skilfully a variety of negotiating roles or postures

27.  Status or rank in organisation

28.  Tolerance to ambiguity and uncertainty

29.  Skill in communicating by signs, gestures and silence (non-verbal language)

30.  Compromising temperament

31.  Attractive personality and sense of humour (degree to which people enjoy being with the person)

32.  Trusting temperament

33.  Willingness to take somewhat above-average business or career risks

34.  Willingness to employ force, threat or bluff

Back to Basics

Mediation, ADR, conciliation and facilitation are the buzz words of the business and legal worlds at the moment.
 
But what do these words actually mean?
 
To sort the wheat from the chaff, I’ve included an explanation below of each of these alternative dispute resolution terms. I’ve based them on the definitions from the National Alternative Dispute Resolution Advisory Council (NADRAC) who are the overseers of ADR in Australia but I’ve tried to make them sound slightly less like I had copied them from a dictionary.
 
ADR is an umbrella term for all the different processes that involve an impartial third party assisting those in a dispute to resolve the issues between them. An exception to this is a matter decided by a judge. These disputes don’t fall within the ADR umbrella and instead are resolved by a judicial outcome. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Conciliation, facilitation and mediation are all types of ADR.

Conciliation involves a dispute resolution practitioner (the conciliator) helping the parties in dispute to identify the issues they are arguing about, develop options, consider alternatives and try to reach an agreement. A conciliator will provide advice on the matters in dispute and/or options for resolution, but will not make a determination. This means the conciliator won’t decide the outcome of the matter like a judge would.

Facilitation is a process in which the participants (usually a group) use a dispute resolution practitioner (the facilitator) to help them identify problems to be solved, tasks to be accomplished or disputed issues to be resolved. Facilitation generally stops there; however sometimes the facilitator may continue to assist the participants to develop options, consider alternatives and try to reach an agreement. The facilitator doesn’t provide advice on the issues being discussed or how the matter can be resolved.

Mediation is much like conciliation in that a dispute resolution practitioner (the mediator) will help the parties in dispute to identify the issues they are arguing about, develop options, consider alternatives and try to reach an agreement. Like a conciliator, the mediator does not decide the outcome of the dispute but unlike a conciliator, they don’t provide advice about the issues being discussed or how the dispute could be resolved. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement.

For a more comprehensive overview of ADR terms, visit NADRAC’s website here.