Investigation Fairness – A Welcome Question

Investigation Fairness – A Welcome Question
Dean Benard

Anyone who has heard me speak or has read some of my articles will know that I spend a lot of time trying to impress upon investigators the importance of ensuring that your investigations and your conduct as an investigator are bullet proof to criticism. You do not want to leave openings that can be exploited by those looking to achieve a certain outcome. The first thing that will be examined and questioned is the process, and whether it lacked fairness; or the investigator behaved in a manner that created an unfairness. How do we prevent this? Well, we don’t prevent the question from being asked; we welcome it, because asking that question is important to ensuring justice for all involved. However, we want the answer to that question to be, “Yes it was a fair process.” So how do we get there?

Maintaining the following key principles of fairness will help parties feel confident in the process and the outcome.

Transparency: The process needs to be transparent. This includes open communication about the how the process will unfold, what the parties can expect as well as what their rights, responsibilities, and obligations are. The parties need to know what they can expect from the investigation, but also what is expected of them.

Objectivity: Investigators should always strive to be neutral fact-finders, collecting the facts without pushing the agenda of either party. Investigators need to recognize and mitigate any potential biases they might have, real or perceived, and always keep their opinions to themselves. While some investigators might be expected to make findings at the conclusion of an investigation, expressing any preliminary findings before all of the information has been obtained could create an appearance of bias or prejudgment.

Participation: Both parties to a complaint should have ample opportunity to participate in the process and provide any information that they feel is relevant to the investigation. Each party should feel like they have been given the chance to express their positions and be heard fully.

Disclosure: Findings and decisions should never be based on evidence that the parties have not had a chance to comment on. If a key piece of evidence appears to be the cornerstone for a finding against a respondent, the respondent should be given the opportunity to review the evidence and refute it. While the parties might not agree with the investigation outcome, they should understand the evidence that any decision was based upon.

Many of the above actions and suggested approaches are implemented through the investigator’s communication with the parties to an investigation. Our language and our demeanour indicate a great deal to those we interact with, and this is where perceptions are born, and opinions are formed. It is important to have insight into your communication style and your approach to dealing with any conflicts or challenges that might arise as your investigation unfolds. How we deal with people is where the difference is made.

Maintaining the above principles will not only ensure a fair investigation, but also help protect the integrity of the investigation process, the individual investigator, and the organization they represent, against allegations of unfairness.