Show me the money! The new Australian Financial Complaints Authority

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In just a few weeks, the three pillars of Australia’s financial dispute resolution architecture will be rolled into a single new body – the Australian Financial Complaints Authority (AFCA).

From 1 November 2019, AFCA will replace the Financial Ombudsman Service (FOS), the Credit and Investments Ombudsman (CIO) and Superannuation Complaints Tribunal (SCT).

As the AFCA website explains, the body will be funded by its members – i.e. Australian financial providers – with the amount payable by a particular provider being a combination of a base subscription and usage based charges.  This is a mechanism common to industry-funded schemes, and is designed to promote effective internal dispute resolution by providers, and ensures that complainants (consumers and small businesses) can access the scheme free of charge.

The jurisdiction and powers of AFCA are set out in its Scheme Rules.  One notable, and beneficial, feature of AFCA is its power to deal with systemic complaints alongside individual disputes, to order that changes be made, and to report AFCA’s findings to government bodies such as ASIC, the ATO and APRA (the Australian Prudential Regulation Authority).

Dispute resolution practitioners may also be interested to know that AFCA has advertised a number of positions at various levels in both Sydney and Melbourne.  Details here.

Image:  Pixabay, licensed for free commercial reuse.

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Mediation, Mediator, Mediation – PART 1

by Greg Rooney

Greg Rooney Portrait 0686Mediation has an identity issue – but it’s not its fault.

Mediators – and the profession they practise called mediation – merely sit as innocent bystanders observing how the modern collaborative interconnected economy has challenged the identity and, in some cases, the very existence of the established professions and commercial and social institutions.

We now live in a time where a world of connectivity and fluidity has replaced the 20th– century Newtonian concepts that are linear, predictable and deterministic.  This is a world driven by the rise of the World Wide Web in 1990, powered by the Google search engine in 1996 and the power of social networking starting with Facebook in 2004.

The world dramatically changed again in 2007 when Napster introduced the first sharing platform heralding the beginning of the collaborative sharing economy.  Then came Airbnb and Uber, both in 2008.  We now have transparent and open data networks that are available free of charge to anyone with an Internet connection.

The latest iteration in this change is the development of the ‘Internet of Things’ which is a network of physical devices, including vehicles, home appliances and other items embedded with electronics, software, sensors, actuators and connectivity, which enables these things to connect with each other and exchange data. As an example Uber’s computers share traffic data with Google Maps computers.

The complexity caused by this connectivity has upended the Newtonian concept that the world is ordered and measurable and that having knowledge of the past will allow a computation of the future.  Many organisations and professions, including the legal profession, still rely on a fixed Newtonian view of the world and wonder why they are being disrupted to their detriment.

The biggest upheaval has been the rise in the commercial value of trust over that of competitive and adversarial behaviours.  The sharing economy relies on the willingness of users to be trustworthy and to trust each other.  The platforms themselves also must be trustworthy. The sharing economy is built on the human element which is inherently complex. It is therefore essential that any conflict be dealt with in a way that preserves those trusting relationships while allowing new learnings which are an essential springboard for innovation and evolutionary breakthroughs.

We therefore require a new way of thinking and operating that can work with this complexity.

This new world order accurately describes the lot of the practising mediator. Mediators around the world will go off to work tomorrow morning and engage with parties at a very human level in much the same way as they have been doing since the late 1980s.  They will work with the uncertainties of the conflict they are mediating and hopefully come up with ‘good enough’ resolutions.  They will continue to deal with complexity and ambiguity daily and use their soft skills to massage impasses and blockages. These ‘soft’ skills are now in high demand in the commercial world.

It is the established professions and the commercial and social institutions that are having the identity crisis. They are in a scramble to find meaning and understanding to try to fit in with this new reality.

No profession is more under threat from this new world order than the legal profession.

Since the 1980s it has moved from being a trusted profession based on the application of scale costs, which moderated the profession’s financial self-interest, to a commercial business model built on time costing to maximise dollar return through promoting (litigation finance) and extending disputes by means of the adversarial culture. The problem is not so much the high legal fees, although it is an issue, it is the pursuit of the adversarial approach to drive those extra fees. This keeps their clients stuck in the conflict zone far longer than is commercially necessary. This has turned out to be a huge self-inflicted wound.

It has left the profession exposed and unprepared for the arrival of the open sharing economy built on trust and maintained by the soft skills of managers and their advisors.

This is Part I of a three part series by Greg

Dispute resolution in the age of information – understanding the legal information experience

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We are said to live in the ‘age of information’, with a vast volume of possibly relevant information available to us for every single decision – from the purchase of an everyday item to the resolution of a complex family dispute.    This has led one commentator to remark  that this large amount of information makes us “like a thirsty person who has been condemned to use a thimble to drink from a fire hydrant.”[1]

Training and experience helps to enable lawyers to  identify information that is current, relevant to the jurisdiction, and authoritative.  However, how do unrepresented parties make sense of legal information?

This was the key research question in a project undertaken by myself and an interdisciplinary group of colleagues.   Funded by the Australasian Institute of Judicial Administration,  we examined how unrepresented parties involved in disputes engage with the information that they need to make sense of their legal rights and responsibilities.

The results of that research have been published in a series of forthcoming articles, including most recently in volume 27(4) of the Journal of Judicial Administration:

Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, “Understanding the Legal Information Experience of Non-lawyers: Lessons from the Family Law Context” 27(4) Journal of Judicial Administration 137.

What is “legal information experience”  and why does it matter?

Research into legal needs is not a new phenomenon – and it typically focusses on the prevalence of particular types of legal problems, the interaction between different types of legal problems, and the consequences of legal problems for the wellbeing (physical, mental and financial) of individuals.  An excellent example of  this type of research is the large-scale legal needs survey work of the Law and Justice Foundation  of NSW.

“Legal information experience” can be categorised as a subset of legal needs research, but it differs from much existing work on legal needs in its focus and methodology. While some legal needs studies may also consider the role of information, such as the sources that individuals have consulted in order to address their needs, this is usually from a perspective of satisfaction with the available options.

Research into the legal information experience, by contrast, focuses on the lived experiences of people accessing legal information, including how they locate sources of information, engage with those sources and use them to understand their situations.   It uses  a qualitative, interpretive research method based on in-depth interviews with a smaller sample of participants.  This approach is used to gain a detailed understanding of a participant’s unique perspective and to reveal the meaning of the experience from their point of view.[2] It therefore represents a useful complement to larger legal needs surveys in unravelling the complexities of how to best facilitate access to justice.  

Our study of legal information experience identified five key issues:

  1. Complexity: Parties struggle with the complexity of the information experience;
  2. Credibility: Parties have difficulty in assessing the credibility and reliability of sources of information and the information provided;
  3. Preferences: Parties indicate clear source preferences, which are not the same preferences that lawyers might expect;
  4. Application: Parties have difficulty applying the information retrieved from various sources to their individual situation; and
  5. Language: Parties tend to use language that is no longer reflected in family law legislation or practice.

Each of these aspects of  legal information experience has implications for how legal information can be provided, communicated and interacted with by both experts and non-experts alike.  It also offers insights into how to optimise interactions between experts and non-experts.

In subsequent blog posts we will expand on these findings  and the implications for dispute resolution practitioners, lawyers, and others involved in the communication of legal information.

 

 

Footnotes

[1]RS Wurman, Information Anxiety 2 (Que, 2001) 15

[2]S Kvale and S Brinkmann, InterViews: Learning the Craft of Qualitative Research Interviewing (SAGE, 2nd ed, 2009).

 

Image Credit: wuestenigel (https://www.flickr.com/photos/30478819@N08/30155035707/) Flickr via Compfight (http://compfight.com) cc (https://creativecommons.org/licenses/by/2.0/

A positive professional ideology for lawyers: Fidelity to the good of dispute resolution (DR)

s-l300A positive professional ideology for legal DR practice should incorporate a genuine fidelity to the good of DR. This ‘good’ derives from the values and goals of DR that are firmly situated within the framework of the rule of law in Australia’s Western liberal democracy. Core DR values include justice, party autonomy and community. Lawyers practising DR need to be professionally committed to working to realise these values across the matrix of DR processes, as they constitute an anchor of belief and perspective, and represent the grounding positive contribution that lawyers as DR practitioners make to society. DR values should influence professional lawyering and decision-making, guiding judgments as to what is acceptable and ethical. DR process goals — procedural and substantive justice, impartiality, self-determination and participation, and access to justice — represent the procedural objectives for putting such values into practice. Together DR values and goals provide the foundations of DR as a societal ‘good’, and form an ethical, just foundation for a positive professional ideology for lawyers.

Parties who seek the services of DR legal practitioners are almost always in a position where they are struggling to manage or resolve their disputes themselves. This is why they need access to legal DR expertise. They find themselves without the necessary knowledge, skills and attitudes to achieve effective dispute resolution, or conflict management, on their own. Being in dispute or conflict is often a difficult, stressful and disheartening time for people. Through a fidelity to the good of DR, lawyers not only contribute constructively to society but they can also achieve positive interpersonal and individual change for their clients. This positive impact has the potential to extend to healing, wholeness, harmony and optimal human functioning.

It is difficult to measure or quantify the exact actual benefit of DR practice for societal harmony, for legal certainty, for the quality of business and personal relationships, and for the well-being of citizens. It is nonetheless our contention that lawyers practising DR are, by putting the values and goals of DR into action, contributing to and sustaining, an inherent public good.

These thoughts have been adapted from Chapter 13 of Laurence Boulle and Rachael Field, Australian Dispute Resolution: Law and Practice (Lexis Nexis, 2017). We welcome your responses to them.

Laurence Boulle and Rachael Field

Acknowledgement of image: https://www.google.com.au/search?q=images+for+fidelity&rlz=1C1CHZL_enAU769AU769&tbm=isch&tbo=u&source=univ&sa=X&ved=2ahUKEwjF3sen79rdAhXY7WEKHdGNB5gQ7Al6BAgAEA0&biw=853&bih=386#imgdii=MAkGkWr9xEeZIM:&imgrc=EEsqx8d9gM18PM:

 

30 Years of the Australasian Dispute Resolution Journal!

IN 2019 ADRJ WILL CELEBRATE 30 YEARS OF PUBLISHING ADR ARTICLES

The Australasian Dispute Resolution Journal, published by Thomson Reuters (then Law Book Co), was a pioneer in venturing into the field of publishing academic articles relating to mediation. This came about through the efforts of the late Micheline Dewdney and Ruth Charlton, supported by ADRA and encouraged by the late Sir Laurence Street.

Sir Laurence contributed the first article for publication in February 1990 and remained till his death the Chief Editorial Consultant of the Journal. That article, still fresh and relevant today, is to be republished in Part 2 of Volume 28 as a tribute to his vast contribution to ADR.

Innovation and research continues to expand our knowledge in the broad field of dispute resolution. Thus the Journal would welcome the receipt of unpublished topical articles (up to 5000 words) and book reviews (up to 1000 words). All articles are peer reviewed.

Contributions should be emailed to the Thomson Reuters Editor at lta.adrj@thomsonreuters.com

Posted on behalf of Ruth Charlton

ADRJ Editor

A Tribute to Mediation’s Grassroots

 

sps_1473 staff on call1While mediation has become a generic and ubiquitous brand it is worth recalling its 1980s Australian genesis in community justice programs throughout the country. Despite the contemporary preponderance of mediation within courts, tribunals, commissions and other legal institutions or legal contexts, the community justice programs have continued in less prominent forms and have increased their scope and services over time. While it is tempting to consider multiple future adaptions of mediation through replacement and disruptive technology and in many different dispute areas, it is appropriate to recognise the anchoring effect of its earliest community manifestations. While disruption (or, more positively, transformation) is a vogue concept of the age there is also a value in those who maintain the practice of traditional forms of mediation. While welcoming the inn

This is not, however, to pine wistfully for a return to mediation’s original intent and identity, as is sometimes heard at conferences. The system now has multiple intents and numerous identities; its future must be considered in the light of the present, and we reject an over-nostalgic view of mediation’s past. As we said in Australian Dispute Resolution, it is important to engage with ‘the discontinuities in the history of DR in Australia to help us learn from the past, avoid reinventing the wheel, remind us of the ideas and approaches that have been jettisoned, and appreciate why they have been discontinued or replaced’.

sps_1330 mediation scene

We hope you have enjoyed the series of posts from Chapter 12 of our new book Mediation in Australia (LexisNexis, 2018).

Laurence Boulle and Rachael Field

Spreading the word – making ADR research available to the wider workforce

At a recent VADR presentation on Workplace Dispute Resolution, Fred Wright, Rodney McBride and Sue Ackerly spoke about their dispute resolution (DR) work with the public sector. Focussing on triage rather than direct DR processes, their work is data driven – this struck an immediate chord with me as it connects to my passion for evidence-based practice.

The findings of the 2010 State Services Authority’s implementation guide: Developing Conflict Resilient Workplaces and its companion guide for Managers and Teams were drivers of their work. These reports (part of the ‘Taking the heat out of workplace issues’ project) have inspired me to investigate the findings more closely.

 

This research holds interest for me, because it has a direct and strong connection to my work in DR. But the research has relevance and significance far beyond those of us practising in the DR field. It has something to say to every business – from the largest to the smallest. How many of these businesses (time poor like we all are) will make time to review the findings and explore their business relevance? I think we know the answer.

This is an important example of a broader issue and a recurring challenge.

Is it enough for us – dispute resolution (DR) academics, pracademics and practitioners – to investigate the research and share it with each other or should we be doing more? Do we have a responsibility to pass on this knowledge to the business community intimately affected by the findings? It is a question I see raised continually in research.

In particular, do we need to find a more accessible way to support businesses to recognise the need to deal with conflict early? Does that mean reconstructing how we approach education about DR processes?

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The Report published Victorian State Services Authority

Today, eight years after the reports were first published, I wish to discuss three points.

  1. What evidence do we have about implementation of the recommendations provided in the 2010 guides?

In the workplace environment, I have seen a move away from more adversarial, ‘grievance based’ processes (often triggered only when they have escalated to a point of ‘no return’), to promoting more informal processes (like conflict coaching, facilitation and mediation) to deal with workplace issues as an early intervention tool. This supports the triage process recommended in the Report.

This suggests to me that we are on the way.

  1. How do we support those who are implementing these ideas to pass the message on to others?

Those organisations who understand the value of early intervention and support it together with more formal processes are a vital resource in education about the benefits of ADR. The DR community needs to provide them with evidence-based support and encouragement that they are ‘on the right track’. We can do this by continuing to collect data on the success of this existing research and publishing the findings. We can also showcase these businesses in case studies and success stories.

  1. How do we promote these ideas to workplaces who are not yet on board?

The current business environment gives weight to and is influenced by evidence-based practice. Our community continually publish literature and presents at conferences about the benefits of ADR for other DR professionals. The blogposts available via the ADR Research Network are a significant example of how we provide accessible information about the benefits of the different available DR processes.

The question now is how to provide these to the wider community? The practitioners amongst us are sharing this information as part of the ADR processes and professional development we provide.

Many of us have access to other industries- either because of the focus of our research or because of the careers we held prior to entering the ADR space. Although some of you are already doing this, I encourage the rest of you not only ‘preach to the converted’, but to seek a wider audience with which to share your expertise.

For my own part, I plan to find an industry conference where the audience can be introduced to the value of early intervention through the evidence-based research in which my colleagues and I have been engaged.

I invite others to share their ideas about making ADR research accessible to the wider workforce.