Managing communication in the hearing room
Council of Australasian Tribunals Conference
Quality Decision Making
7 May 2010
Presenter: Joanna Kalowski
Power and communication: what you can
assume
 Litigants are anxious, even when represented.
 Most are poorly prepared for the hearing.
 The higher their anxiety, the lower their capacity
to understand and respond.
 Anxious people are more likely to seem/be hostile.
 People generally have high expectations process
will be fair; and/but
 Have preconceived, often unrealistic notions of
what fairness entails.
 They expect an outcome that will vindicate them.
 They expect to understand everything that
happens around them. (“After all, it’s about me.”)
Power and the hearing
 People feel protected by legal representation, largely because
they feel it evens out power imbalances.
 Unrepresented people can feel at a disadvantage in a
hearing, and keenly feel the unevenness of power relations
with the other side, whether represented or not, as well as
with Tribunal members. (Capacity to articulate complex
issues underlies this.)
 This sense of being disadvantaged often makes them
defensive and aggressive.
 It can also have the opposite effect, silencing them, making
them passive in the face of much they do not follow. A
feeling of helplessness frequently results, further impairing
the capacity to understand and ‘participate’.
Expectations of judges (or how litigants think, having
watched too many U.S. television courtroom dramas)
 The buck stops here: this is the person who will sort it all out.
 The judge is in control, and won’t let me be overborne.
 The judge will protect my rights.
 The climate here is serious, and I will be taken seriously.
 Isn’t this a kind of court? Aren’t these the judges?
 Why so rushed?
CDR’s TRIANGLE OF
SATISFACTION
POWER, AUTHORITY,
INFLUENCE AND
PROCESS
LEADERSHIP
Expectations of authority in the hearing room
 Direction
 Stability
 Conflict Management
 Maintenance of Norms
Authority and Influence
 Influence is the
 Authority is the
capability to carry
ascribed power to
out a task with
achieve an end or
others by
carry out a
recruiting their
responsibility through
interest, energy
others
and commitment
to a common goal
or purpose
The Exercise of Influence Entails
 Clarity in assessing a situation
 Ability to define and describe a
task and set limits up front
 Capacity for analytical thought
 Ability to build confidence and
manage risk
 Capacity to stay with ambiguity
for a time
 Awareness of the importance of
managing people in all
situations
 Openness to range of
solutions
 Capacity to develop joint
goals
 Acknowledgement of
others’ capacity and
contribution
 A strong and realistic
view of your own
contribution
 An ability to manage and
resolve differences
Managing communication: core skills
A capacity to
• communicate clearly and simply
• use accessible, yet not simplistic language
• involve people in the process - eyes and words
• create a climate conducive to ‘participation’
• maintain focus on issues
• ensure there is clarity about process
• maintain courtesy in the hearing room
• listen, summarise, reframe if necessary
• ask questions, not statements disguised as Qs
• decide when and when not to “let it go”…
Techniques 1
Wherever possible…
 Make opening remarks which give an idea of how the case
may proceed today. Explaining rules and process generally
helps to put people at ease.
 Acknowledge people as well as legal representatives.
For self- or unrepresented people
 Let them know what is expected of them, what they can
and can’t do.
 Assure them they will have a chance to be heard.
 Let them know they will have a chance to speak, and
indicate when and in what ways as the case proceeds.
At play in all situations…
FEELINGS
FACTS
PROCESS
INTERVENTIONS
Prescriptive
To give advice; be directive.
“You must answer yes or no to the question.”
Informative
To instruct; to inform; make an observation
“This is your chance to ask X questions.”
Confrontative
To challenge; give direct feedback.
“Please remain silent while X is giving evidence.”
Cathartic
To acknowledge & normalise tension.
“Question may be painful, but you will have to answer..”
Catalytic
To encourage analysis.
“Where does this line of argument take us?”
Supportive
To express empathy.
“It’s been a long day.”
John Heron, 1975
Techniques 2
Managing emotion in the courtroom - saving face (theirs)
 On occasions, you may have to deal with a litigant’s emotion in
order to achieve a break through at the rational level.
 Call or offer a recess, or ask if they can go on.
 Mutualising your comments allows you to deal with some of the
emotion: “There may be moments everyone feels…”
 Recognise the impact of culture on behaviour.
 Expand your own repertoire. Use what works for you.
Saving face is particularly important for unrepresented
litigants, but is highly valued by all litigants. It has been
shown not to lead to a corresponding loss of status on the
part of the judge.
FROM EMOTION TO REASON: a 2-step process
E
R
© Joanna Kalowski 2002
Attend first to the needs they can’t express in words
E
Listen
&
E
acknowledge
R
Returning to reason follows letting go of emotion
E
R
1. You attend to their state
2. Emotion recedes, so reason rises
E
R
Operating across cultures
Theory of context
IN LOW CONTEXT CULTURES...
The circumstances of an event warrant little attention,
and the focus in communication is on objective facts
conveyed.
Surrounding circumstances are filtered out.
Theory of context
IN HIGH CONTEXT CULTURES...
Surrounding circumstances play a key role in interpreting
data.
Factors such as gesture, posture, tone of voice, and the
social status of the speaker and the social setting of the
interaction are used to interpret spoken words.
Hofstede: Influences on cross-cultural dialogue
Impact of four fundamental (unasked) questions:
How direct should I be?
How personal should I be?
How do I get a turn to speak?
How are good relations made and kept here?
The way we answer these questions is influenced by a
number of factors of which culture is one. Personality,
gender, life experiences and social status all play a part
but children of any culture unconsciously know the
answers by about age 8.
SIMILARITIES & DIFFERENCES
clothes
languages
religions
foods
family patterns status symbols respect pattern
attitudes to money
work patterns
food shelter security identity
purpose in life
covering
belonging
self respect
self fulfilment
(Maslow)
Developed by Sheila Coghill
HUMAN
SAME
DIFFERENT
preferences
adjustment
self-image
life-style relationships values taste
finances
motivation
INDIVIDUAL CULTURAL
UNIQUE
3 levels simultaneously in operation
Effective Cross-cultural Communicators are:
Tolerant of ambiguity
Open-minded
Non-judgmental
Flexible, adaptable
Curious
Perceptive and have
A strong sense of self
Ability to cope with failure
Low orientation to status
Ability to establish empathy
Managing communication in the hearing room
Council of Australasian Tribunals Conference
Quality Decision Making
7 May 2010
Presenter: Joanna Kalowski