2014 Lynne Coulson Barr - Coach, Compliance Offices or Peace Maker: Responding to expectations and practice Issues in Statutory ADR

Coach, Compliance Officer or Peace Maker?

Responding to expectations and practice

issues in Statutory ADR

National Mediation Conference Sept 2014

Lynne Coulson Barr

Mental Health Complaints Commissioner (Vic)

Chair, LEADR Statutory ADR Special Interest Group (Vic)

Weinstein International Fellow

Doctoral Candidate Monash University

Presentation outline

1. Introduction

2. What do we mean by ‘Statutory ADR’?

3. Common features of Statutory ADR

4. Common practice issues and expectations of parties

5. Opportunities for practice development

1. Introduction

Presentation has been informed by:

• Experience with Disability Services Commissioner (Vic)

• New statutory role of Mental Health Complaints Commissioner

• Doctoral research into decision-making about the suitability of matters for statutory conciliation

• Weinstein International Fellowship study tour in US on promoting access to ADR

• Responses to formation of the LEADR Statutory ADR Special Interest Group

2. What do we mean by Statutory ADR?

ADR Objectives: NADRAC

• ‘to resolve or limit disputes in an effective way;

• to provide fairness in procedure;

• to achieve outcomes that are broadly consistent with public and party interests.’

ADR classifications: NADRAC

• ADR processes may be facilitative, advisory, determinative or, in some cases, a combination of these

• Statutory ADR most commonly associated with combined or hybrid processes

NADRAC definitions of ADR processes:

• Hybrid/combined processes: ‘…in which the dispute resolution practitioner plays multiple roles. For example, in conciliation , the dispute resolution practitioner may facilitate discussions, as well as provide advice on the merits of the dispute ….’

• Conciliation: definition includes facilitative processes and an advisory role on process, outcomes and the legislation

• Statutory conciliation: ‘conciliator will actively encourage the parties to reach agreement which accords with the advice of the statute’

Statutory ADR- working definition

ADR processes conducted by statutory bodies under statutes which may involve:

• hybrid processes including facilitative, advisory, evaluative and in some cases determinative processes;

• prescribed legislative requirements; and

• the dispute resolution practitioner actively encouraging agreements in accordance with the objectives of the legislation.

• Multiple roles and expectations of the statutory body: broader than disputes between two parties

‘watch dog’, ‘regulator’, ‘defender of the people in dealings with government’

• Additional considerations of compliance with quality standards/legislative requirements, public interest , and risk management

• Dispute resolution practitioners are public officials/servants- not necessarily NMAS trained/accredited

• Requirements to determine suitability of disputes and to give effect to legislative objectives

3. Common features of statutory ADR

Example of multiple roles & expectations

MHCC established as part of safeguards, oversight & service improvement mechanisms

Functions include to:

•accept, assess, manage and investigate complaints

• resolve complaints in a timely manner using formal and informal dispute resolution

•provide information, education and advice on complaints

• assist consumers and other persons to resolve complaints directly with mental health service providers

• assist mental health service providers to develop or improve policies and procedures to resolve complaints

• identify, analyse and review issues arising out of complaints and make recommendations to improve services

•investigate into, and report on, any matter referred by the Minister.

Powers include issuing of compliance notices with penalty provisions

4. Common practice issues in Statutory ADR

I. Limited legislative guidance

II. Requirement to make decisions on suitability and ‘likelihood of success’

III. Articulating model and use of hybrid processes: ‘being an advocate for the Act’

IV. Responding to party expectations/views of statutory body’s role & processes

Related issues:

Dealing with power imbalances and repeat players

Resource & time constraints

Limited legislative guidance

• Legislation is ‘unobligingly inconsistent in their use of the terms of mediation and conciliation, seldom defining them and rarely indicating what is required of the respective interveners’ ( Boulle)

• Diversity in approaches/models across jurisdictions:

“It’s like comparing apples with pears”

“little consensus amongst conciliation providers as to what precisely conciliation means”

→ Requires each body to consciously develop their own definitions, interpretation of legislative provisions, and articulate their own objectives of processes

Decision-making on suitability

• Issue of lack of reliable, empirically validated criteria or predictors of success for ADR processes

• Changes in approaches: ‘presumptive’ approach to suitability and adoption of models of ‘early conciliation’

Examples: limited assessment, convening conferences without written responses to complaints

→ Need to develop an ‘enabling’ model of decision –making

Changing the question to ‘how can we make the matter suitable?’

Examples include early conferencing, coaching, shuttle, safeguarding options, and responding to expectations of parties

Articulating model and use of hybrid processes

• Common to combine facilitative/advisory processes but need to articulate models & transition between processes/roles

• NMAS Approval standards have provided for ‘blended’ process but focused on content of advice rather than skills

• Practitioners are either trained in ‘facilitative’/’interest based’ model of mediation, sector specific, or not

• Limited guidance of translating facilitative/interest based mediation model to statutory contexts

→ Need for shared development of practice frameworks and skills in being ‘an advocate of the Act’

Riskin Grid: Example of framework for hybrid processes

Other frameworks include:

Laurence Boulle’s typology of mediation: settlement, facilitative, transformative

and evaluative

Nadja Alexander’s ‘Mediation Metamodel’: Dimensions of positional, interest

based, transformative or dialogue, and dimensions of focus on process or parties

Responding to expectations

• ‘Coach’ or ‘Compliance officer’ or ‘Peace Maker’ – all three roles and more….

• Example: Expectations for MHCC to support early resolution by services at same time as exercising powers and safeguarding rights

• Challenge of multiple roles and processes • Research findings: Need to explain and educate parties

about process and benefits of statutory ADR: “Complainants can want the provider to be punished…they want us to investigate…they may not see the value of conciliation” “ We have to sell the benefits of conciliation” “ Negative attitudes/hostility of parties/ unwilling to participate” “ The difficulty we have is that conciliation is a new concept for providers and we are getting resistance”

If only…….

→ Need to: •develop sophisticated assessment and resolution skills

•identify and address potential barriers to participation/resolution

•develop skills and approaches to working along the continuum of power, rights and interests

•design dispute resolution processes to address the particular issues and needs of parties

•develop a practice model that articulates overall objectives of process

•develop agility and competencies in multiple roles and functions

Creating communities of practice for Statutory ADR to address the need to develop:

• Frameworks to guide the use of hybrid approaches and different roles of the dispute resolution practitioner and statutory body

• A common language to describe multiple roles and approaches

• Approaches to developing dispute resolution plans/designing processes

• Training and skill development for responding to practice issues, expectations of parties and transition between roles

4. Opportunities for practice development

Developing a community of practice

Contact Details: Presentation:

Lynne Coulson Barr

Level 26, 570 Bourke St

Melbourne VIC 3000

Ph: (03) 9032 3333

[email protected]

Enquiries LEADR Statutory ADR Special Interest Group- Victorian Chapter

https://www.leadr.com.au/chapters-groups/victoria#Contact