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Managing communication in the hearing room
Council of Australasian Tribunals Conference
Quality Decision Making7 May 2010
Presenter: Joanna Kalowski
Managing communication in the hearing room
Council of Australasian Tribunals Conference
Quality Decision Making7 May 2010
Presenter: Joanna Kalowski
Power and communication: what you can assumePower 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.”)
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 hearingPower 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’.
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)
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?
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, POWER, AUTHORITY, INFLUENCE AND INFLUENCE AND
PROCESS PROCESS LEADERSHIPLEADERSHIP
Expectations of authority in the hearing roomExpectations of authority in the hearing room
Direction
Stability
Conflict Management
Maintenance of Norms
Direction
Stability
Conflict Management
Maintenance of Norms
Authority and InfluenceAuthority and Influence
Authority is the ascribed power to achieve an end or carry out a responsibility through others
Authority is the ascribed power to achieve an end or carry out a responsibility through others
Influence is the capability to carry out a task with others by recruiting their interest, energy and commitment to a common goal or purpose
Influence is the capability to carry out a task with others by recruiting their interest, energy and commitment to a common goal or purpose
The Exercise of Influence EntailsThe 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
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
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
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”…
Managing communication: core skills
Techniques 1Techniques 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.
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…
FACTS
PROCESS
FEELINGS
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.”
ConfrontativeTo 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
INTERVENTIONS
Techniques 2Techniques 2Managing 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 unrepresentedlitigants, but is highly valued by all litigants. It has beenshown not to lead to a corresponding loss of status on thepart of the judge.
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 unrepresentedlitigants, but is highly valued by all litigants. It has beenshown not to lead to a corresponding loss of status on thepart of the judge.
FROM EMOTION TO REASON: a 2-step processFROM EMOTION TO REASON: a 2-step process
EE
RR© Joanna Kalowski 2002
Attend first to the needs they can’t express in wordsAttend first to the needs they can’t express in words
EE
EE RR
ListenListen & & acknowledgeacknowledge
Returning to reason follows letting go of emotionReturning to reason follows letting go of emotion
EE
EE RR
RR
1.1. You attend to their stateYou attend to their state
2. Emotion recedes, so reason rises2. Emotion recedes, so reason rises
Operating across culturesOperating across cultures
Theory of contextTheory 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.
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.
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.
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.
Theory of contextTheory of context
Impact of four fundamental (unasked) questions: Impact of four fundamental (unasked) questions:
Hofstede: Influences on cross-cultural dialogue
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.
How are good relations made and kept here?
How do I get a turn to speak?
How personal should I be?
How direct should I be?
SIMILARITIES & DIFFERENCESSIMILARITIES & DIFFERENCESD
IFFER
EN
TD
IFFER
EN
TC
ULT
UR
AL
CU
LTU
RA
LS
AM
ES
AM
EH
UM
AN
HU
MA
N
Developed by Sheila CoghillDeveloped by Sheila Coghill
food shelter security identityfood shelter security identitypurpose in life covering belongingpurpose in life covering belonging self respect self fulfilmentself respect self fulfilment
(Maslow)(Maslow)
3 levels simultaneously in operation3 levels simultaneously in operation
preferences adjustment self-image preferences adjustment self-image life-style relationships values tastelife-style relationships values taste
finances motivationfinances motivation
clothes languages religions foods clothes languages religions foods
family patterns status symbols respect pattern family patterns status symbols respect pattern
attitudes to money work patternsattitudes to money work patterns
IND
IVID
UA
LIN
DIV
IDU
AL
UN
IQU
EU
NIQ
UE
Tolerant of ambiguity
Open-minded
Non-judgmental
Flexible, adaptable
Curious
PerceptiveA strong sense of self
Ability to cope with failure
Low orientation to status
Ability to establish empathy
and have
Effective Cross-cultural Communicators are:
Managing communication in the hearing room
Council of Australasian Tribunals Conference
Quality Decision Making7 May 2010
Presenter: Joanna Kalowski
Managing communication in the hearing room
Council of Australasian Tribunals Conference
Quality Decision Making7 May 2010
Presenter: Joanna Kalowski
