Is ADR Right for Regulators? – Deconstructing a Previous Debate
In 2020, at the annual CNAR conference, a “GREAT DEBATE” took place. Well maybe it wasn’t great, but it was interesting. Jeremy Quesnelle, Deputy CEO of the College of Naturopaths of Ontario, and Dean Benard engaged in what we called “The Great Six Minute Debate” on the value of Alternative Dispute Resolution (ADR) in managing regulatory complaints. Jeremy took the con position and I took the pro position, although, we are both pro on the question. Jeremy had the more difficult task to find reasons to reject ADR, but find reasons he did, and it led to a good-natured debate on the topic.
The use of ADR, commonly referred to as mediation, but often consisting of a variety of additional conflict resolution approaches, is arguably not used to the greatest extent in the regulatory context. This article is a brief primer on what to do if you want to have a successful ADR program to address complaints.
One caveat that must be pointed out early in this article, is that I am not suggesting ADR should replace investigations. The reality is that most regulatory complaints will require investigation. This is still the number one service we at Benard + Associates provide and we don’t see that changing. However, ADR has a role to play, and in my view, regulators should be embracing all possible tools for addressing complaints. Now let’s discuss process.
Determining what is appropriate for ADR processes
Not all cases should be considered for ADR processes. Obviously egregious acts, such as sexual abuse, theft, physical abuse, fraud, etc. are not compatible to an ADR process. In some jurisdictions where ADR provisions exist in the legislation, sexual abuse allegations are specifically prohibited from being resolved through ADR. ADR is appropriate in cases where the dispute is around communication concerns, or the issues involve dissatisfaction with some services or approaches a professional might have taken. Often, complaints are not demonstrative of overt violations of professional or practice standards, but still need to be resolved. Committees that ultimately approve ADR resolutions, and their staff support people, should have a common understanding of the nature of cases deemed appropriate for ADR. Having a predetermined understanding will streamline the process and eliminate delays going back and forth between staff and committees. We have never had a mediated solution rejected by a committee because the committees have been involved in setting parameters for what should and should not be mediated, as well as what is considered appropriate resolution options. If the mediator stays within these guidelines, there is very little reason for a resolution to be rejected.
Create a Method of “Selling” the Process
People often will see ADR processes as letting people off easy or not holding people accountable. It is important to sell the benefits of ADR to both parties. Some of these might include, speedier resolution, having input into the resolution, salvaging the professional relationship, obtaining an outcome – even if it is just an apology – when the case might likely have resulted in a “take no action” outcome following an investigation. Registrants being complained about are afforded the opportunity in some cases to roll learning into the resolution and satisfy continuing education requirements at the same time. The person doing the “selling” of the process should be someone familiar with ADR, who can speak to the process, explain how it works, and answer questions confidently.
Ensure a transparent process
It is true that in the past ADR got a bad name based on how some regulators managed cases and called it ADR when it wasn’t. That was a long time ago and we now have a better understanding of ADR and the role it plays in resolving complaints. In addition, rules in many jurisdictions have been established to ensure processes are transparent. People can withdraw from ADR and revert to the standard process if they feel that is in their best interest. The people involved in managing the ADR processes must be well versed in the process and how it is approved openly by the appropriate regulatory committee. Educating the participants and being transparent as a regulator to the public about how the process works, where it fits in the larger picture and sharing statistics openly in annual general reports, goes a long way to establishing trust in ADR. The process should be about fairness and ensuring people are not being or feeling forced to use ADR.
Balance the power and keep people honest
Not everyone operates ethically or reasonably and if one or more of the parties are not operating in good faith, the ADR process is at risk. There is often an inherent power imbalance between professionals and their clients. Skilled mediators are experts in recognizing these issues and putting in place methods for combatting the concerns. A good mediator deals with these issues early and will put a stop to the process quickly or work with the individual participants as necessary to address behaviour, approach, intimidation, etc. So, the key here is to have a skilled mediator in place or a roster of mediators in place who have knowledge of regulatory processes, and are experienced in the skills of mediation and conflict resolution
Use all ADR tools
People often think that ADR is simply mediation. While mediation is the most common form of ADR, there are other tools that can be used. In many cases we will never actually mediate but rather act in the capacity of shuttle diplomats. That is going back and forth between the parties and acting as the voice of each to share positions and potential resolutions. Of course, in the process reframing the parties’ respective comments in a way that will be better received by the other party is critical. In other cases, we might conduct group facilitation, where multiple parties are involved and maybe even institutions are involved because of multiple complaints against team members. Some of these facilitations have led to amazing outcomes such as changes in organizational policy.
Now getting back to the debate from 2 years ago, my learned friend Jeremy made the argument that the outcomes with mediation are too limited. I countered, that the reverse is true, and often the outcomes following investigation are limited. It is important to remember that we are choosing cases for ADR that are on the less serious side of the spectrum of cases regulators deal with. That means, whether investigated or not, these cases will result in either taking no action, a letter of caution, or possibly an order to complete some education (in some jurisdictions).
In an ADR process, we can get Registrants, where appropriate, to agree to education and more importantly offer that apology, that rarely happens in the investigative process. Outcomes do not have to be limited they can be plentiful as the parties are assisted to consider all the options. The ADR outcome is customized, and the Complainant and Registrant have more involvement, which leads to greater satisfaction by all.
If you look at many regulators you will see that most of their cases result in no further action being taken and the next largest group would have outcomes that fall short of disciplinary measures. Arguably many of those cases could potentially be suitable for ADR. Some detractors of ADR processes would say the public is not protected by a process that is only between two parties. However, one could argue that ADR is more effective when compared to cases where no action would otherwise be taken, or even in cases where a letter of caution is issued. ADR processes at least give the Registrant pause to consider their actions and how they could do better and avoid issues like this moving forward? Regulators meet their public protection mandate one complainant at a time, and if that complainant is satisfied, AND there is no concern of public risk as assessed by the mediator, and more importantly the oversight committee, then the Regulator has done a fine job of protecting the public.
If you are interested in learning more about ADR processes, establishing a process, or require mediation services, Benard + Associates is there to help. In addition to mediation Benard + Associates provides investigation, mediation, education, and coaching services. Please visit our website for more information www.benardinc.com
