Constructive approaches to conciliations at OVIC

Recently at OVIC we’ve been thinking about what makes for a good conciliation. No two conciliations are the same, and the flexibility of the process is one of the main benefits that it offers. However, all good conciliations have some key themes in common, and we’d like to explore them in this post, as well as consider some of the pitfalls to avoid.

Attitude and approach are everything. Many alternative dispute resolutions processes make reference to the importance of participation in good faith – but what exactly does this mean? For Victorian public agencies, a good starting point can be found in the Model Litigant Guidelines which set the standards for how the state should behave as a party to legal proceedings. The Guidelines include requirements to consider ‘apologising where the State or agency is aware that it or its representatives have acted wrongfully or improperly’, and to ‘pay legitimate claims without litigation’. When it comes to conciliation, this same spirit can be applied. What this generally boils down to is approaching and participating in the process with an open mind, making a genuine effort to attempt to resolve the dispute.

Whilst conciliation at OVIC is voluntary, parties in dispute sometimes fall short of a constructive approach. Privacy complaints, after all, can bring up a range of emotions – from disquiet and mild irritation all the way through to deep humiliation, fear and outrage. In this context, approaching conciliation in a constructive way can be a challenge.

Counterproductive approaches to conciliation

For organisations, these may include the following:

• not having authority to settle the complaint;
• exploiting a power imbalance, especially with an unrepresented Complainant;
• using unethical tactics to exert pressure on a complainant – for example, placing arbitrary ‘time limits’ on offers or reducing offers;
• taking too long to respond, and/or providing an inadequate response that does not properly address the Complainant’s concerns;
• in indirect conciliations, repeatedly cutting short calls or not allowing sufficient time for the conciliation; and
• focusing on overly legalistic defences instead of practical solutions that might resolve the complaint.

Equally, Complainants can engage in unhelpful behaviours during conciliation by:

• failing to take adequate responsibility for their complaint (for example, refusing to make reasonable efforts to demonstrate the impact the complaint has had upon them);
• insisting on totally unrealistic outcomes for their complaint (for example, demanding an amount of compensation above the statutory maximum, a meeting with the CEO, the immediate firing of an individual employee); and
• engaging in a ‘revenge’ mindset and attempting to use the privacy complaint to get back at an organisation or pursue non-privacy related goals (this can arise especially in a soured employment relationship).

OVIC’s top tips for engaging in a constructive conciliation

For Complainants:

• Make sure the outcome that you’re seeking is realistic – see our What should I ask for? Guide to identifying realistic outcomes in privacy complaints information sheet.
• Provide as much information as possible to demonstrate the effect that the incident has had upon you.
• Keep non-privacy issues separate – a privacy complaint is not an avenue for you to seek ‘revenge’ for a failed employment relationship, or the legitimate issuing of an infringement.

For organisations:

• Listen actively and genuinely – it’s hard to think of a more important skill when it comes to engaging in conciliation. Complainants to a dispute have a fundamental need to ‘feel heard’ – to truly feel that the organisation has understood what the Complainant has been through as a result of the privacy incident. At first glance, a Complainant’s concerns and/or proposed resolutions may sometimes appear over-blown or ridiculous to your organisation. A deeper consideration is required to truly get to the heart of a privacy dispute. A Complainant is unlikely to be open to hearing your organisation’s view of the matter until you have demonstrated a sincere effort to step into their shoes and see the incident from their perspective.
• Respond in a way that engages with the Complainant’s concerns – you won’t always be able to provide the Complainant with exactly what they are seeking to resolve the complaint. A successful conciliation requires the participants to think flexibly. If you cannot offer the exact resolution that the Complainant is seeking – is there another way that you can demonstrate that your organisation has engaged with the Complainant’s concerns? Can you demonstrate other ways in which your organisation is trying to mitigate the risks raised by the Complainant?

Privacy disputes can be challenging and not all can be resolved through conciliation. However, approaching a complaint in a constructive way, using the tips above, is much more likely to result in a positive learning experience for both parties.