Are You “Over-Promising” on Confidentiality & Privacy?

“Over-promising” often occurs as a result of unqualified statements. Sometimes, those statements are made inadvertently; other times, they may be made recklessly or through ignorance.  Sometimes they are harmless; other times, they can mislead and create false expectations that cannot be met.

One area in which it is always good to be wary of unqualified statements is the area of confidentiality and privacy.

For example, if as a mediator, I were to say to the parties something like:

Information you give me is confidential. I will never, in any circumstances, disclose it

I would be “over-promising”. That is because there may be circumstances where disclosure could be required or permitted by law.

Similarly, if a recruiter were to say to a candidate something like:

Information about our candidates can never, in any circumstances, be disclosed for a purpose other than finding them employment

that recruiter might be “over-promising”. Again, that is because there may be circumstances where disclosure could be required or permitted by law. You can probably think of a few of them. Some of them appear as exceptions to privacy principles. There may be other exceptions that apply at common law.

The danger in over-promising on confidentiality and privacy is that the person you’re dealing with might be misled into divulging information. Had your statement been properly qualified, they might not have willingly disclosed it to you. Consent may have been improperly obtained – not being sufficiently informed. And the information may have been obtained unfairly.

In short, “over-promising” on confidentiality and privacy crosses the boundaries of professionalism. So, it’s essential to know where the limits of confidentiality and privacy lie and to mark them out carefully.

 

Andrew C. Wood

 

Gender & Intersectional Identity in Grievance Intervention & Professional Conduct Review

My Post-Law transition is leading me into deeper reflection about the work that I do in the field of professional conduct grievance intervention, and I’d really like to get some feedback on an issue I’m grappling with at the moment.

Many professional conduct review programmes allow grievants to request anonymity or pseudonymity when their grievances escalate to a professional conduct review panel. No problem with that. It protects privacy and allays fears of victimisation.  But here’s the thing…

It’s considered good practice to redact all identifying information. Typically, I’d redact name, address, contact details… that sort of thing.  It’s also common to redact gender identifying pronouns – his/her; she/he. And that’s what I’m wondering about.

By redacting gender identifying pronouns, might we be erasing something significant? Are there gender or other intersectional overlays to conflicts that should be preserved? I don’t mean in discrimination complaints – gender identity is clearly a material issue there – but in other cases, for example, cases involving more subtle power imbalances between parties to a grievance that might colour conduct that could be characterised as bullying, unprofessional, or disrespectful?

My present thought is that it might be best to let the parties choose whether they want to disclose their gender identity – with the assistance of an explanation about why it could be significant in the circumstances of their grievance.

So, if you were sitting on a professional conduct review panel, are there cases where you would be assisted by knowing the gender identity of the parties? And if so, what sort of cases might they be?

I’d really like to hear your views.

 

Andrew C. Wood

 

Post-Law Day #6: Capability, Community & Emergence

…where community ended, law began.

At the end of my first post-law work week, my reading has brought me to Jerold S.  Auerbach’s 1983 summation of John Humphrey Noyes’ understanding of the difference in values and methods that marks a progression from Community to Law.*

To me, the Noyes progression seems a bit dark – i.e. one moves towards Law as Community breaks apart.

So, I’m wondering if it also works the other way – whether the recovery of Community requires, in some measure, a retreat from Law. And if so, what skill set is indicated for the encouragement and emergence of a professional community.

That’s something for me to think about because this weekend I’m needing to write my own post-law capability statement and design the governance & procedures framework for a professional conduct support programme.

Work didn’t end when I transitioned to post-law; it just brought fresh challenges!

  • Auerbach J. S. (1983) Justice Without Law? Oxford University Press, New York, p.53.

Staying Resolute

Businessman & Newspaper

 

Post-Law Day #5: Pulling together threads of positive change…

Looking forward to pulling together a few threads of my first Post-Law week, today and over the weekend.

Earlier this week, I had the opportunity to sit in on a webinar presented by Peter Adler and Nina Harding about the use of mediation in organisational planning. Peter spoke about mediating a “meta-negotiation between status quo and change” and “facilitating grown-up conversations”.

I also followed up an invitation to join the #equityatwork Social Room and checked out an interview between Jeremy Scrivens and Ultimate Software Intern, Maria Gabriela Corral, in which Jeremy posed the question:

“What is one thing you would love to change in a positive way in the work you see and the life you see around you?”

The subtle integration of life and work in that question is crucial.

I’m tempted to want to name the Big 3: World Peace, Eradication of Poverty… (add your own).

But I wonder if I’d be better off starting with something smaller. Something about listening and learning…

I’m carrying that thought forward over the next few days, as I put the finishing touches to some learning resources for the recruitment & staffing industry and ponder the opportunities for positive change within an emerging profession and, closer to home, in my own transition to Post-Law.

Staying Resolute

Businessman & Newspaper

Post-Law Day #4: Learning Resources

My post-law transition seems to be evolving into something that is more about leading discovery and encouraging learning than about giving advice.

Spent yesterday usefully working on the commercial collective bargaining project. Really enjoyed being able to present WorkAccord’s discovery level webinar on the ACCC’s proposed class exemption for CollectiveBargaining and what it might mean for the recruitment & staffing industry in Australia. Don’t worry if you missed it! Tickets for the recorded presentation will remain on sale to 31 July 2019.

Today I’ll be working on more learning resources. I’m aiming to cover labour hire licensing applications and whistleblowing changes.

I’d love to hear about your preferred learning engagement formats: Webinar? Workshop? YouTube? Video Meeting? Old-School Lecture? Something else? Nothing…?

Actually, no… Nothing would be a problem!

Staying Resolute

Businessman & Newspaper

 

 

Post-Law Day #3: Collective Bargaining, Synchronicity & #equityatwork

After an early start this morning to watch the first half of the FIFA Women’s World Cup semi-final match between England and USA – no spoilers please, watching the second half via replay – later I’ll be presenting WorkAccord’s discovery level webinar on the ACCC’s proposal for a Collective Bargaining Class Exemption.

The class exemption will create a safe harbour from competition (anti-trust) laws and will allow small businesses to collectively bargain with their clients and suppliers.

It will also allow contractors and freelancers to collectively bargain with their agencies, clients and gig platforms in pursuit of an agenda similar to the one that seems to be taking shape in NYC according to evidence taken in the course of new initiatives building on the success of New York City’s Freelance Isn’t Free Act.

Now, maybe things do happen for a reason and at their right time. Yesterday, I was invited by Jeremy Scrivens, whose work I’ve observed for some time, to join the  #equityatwork Social Room.

It seemed to be one of those synchronous moments that you hear about occasionally – moments when several things you’re thinking about all align. You’ve got to grab those moments. I’ve said, yes.

So, this afternoon is given over to finding out as much about this fascinating “people first” movement as I can and doing some deep reflection on how it fits with my transition to “post-law”.

Staying resolute

Businessman & Newspaper

 

Day #2 Post-Law Transition Focus: Collective Bargaining & Conflict Resolution

This morning, I’ll be putting the finishing touches to WorkAccord’s submission in response to the ACCC’s request for feedback on its proposed Class Exemption for Collective Bargaining. Submissions are due by 3 July 2019.

Staffing agencies would do well to have a close look at what the ACCC is proposing. I’m not sure that the $10 million turnover definition of”small business” works for high turn-over, low margin businesses that have significant labour and regulatory costs. There’s a risk of being caught out as the “weak link” in triangular and tiered arrangements – as the target of bargaining groups, but with no protection when dealing with host clients. That’s something I’m hoping to address.

Looking forward to a great webinar with Nina Harding and Peter Adler, put on by Resolution Institute at midday today. The topic:

Working with organisations, building alignments and making plans: A model for mediators to decode, strategise, develop plans and resolve conflict in organisations.

Then, this afternoon – back to collective bargaining, as I prepare my materials for WorkAccord’s webinar tomorrow (July 3) at 11.00am: Commercial Collective Bargaining: Opportunities & Threats.

 

Staying resolute

Businessman & Newspaper

Post Law Day #1

Day #1 of my transition from life as a legal practitioner. So far not vastly different. Two things are a bit different though:

  • Building a new reading list – focusing on informal justice (Jerold Auerbach, 1981), value network analysis (Verna Allee, 2008), conscious contracting (Linda Alvarez, 2013 ),  nonviolent communication (Marshall Rosenberg, 2015),  structured negotiation (Lainey Feingold, 2016), and plenty more in the J. Kim Wright global integrative law movement (J Kim Wright, Lawyers as Changemakers, 2016).
  • Writing a submission to the ACCC on collective bargaining for small business and independent contractors under the Competition & Consumer Act.

Those two items are related, by the way. Spending time to discover precisely how!

Businessman & Newspaper

Post-Law, Code 5 and Change

Change yourself concept background

I’m looking forward to leaving the Law.

Yes, after more than 40 years as a student and practitioner, I’ll be retiring from legal practice at the end of this month. Some people have asked me, kindly, if I’ll be doing any “non-legal work” in my “retirement”. That sounds a bit doddery and even vaguely unlawful!  I prefer to think of what I’ll be doing as “post-law”.

Post-law aims to resolve conflict and build accord without recourse to law, legal rules, or legal processes. It links more to the pull of community and relationship than to the push of State and power. It finds affinity with social norms and professional standards rather than with tribunal processes and regulations.

In my case, a transition to post-law is prompted by critical attitudes developed in the informal justice movement over the years and draws together learnings from mediation, conflict resolution, and integrative practice.

My friends in the workforce enablement, recruitment, and staffing industries may be aware of recent work I’ve been doing to design industry codes, standards, and conflict resolution models that are kinder, more human-centred, and more values-informed in their pursuit of professional excellence than the legalistic, anti-competitive, and self-interested models that are often promoted as codes of “association ethics”.

The RCSA Code for Professional Conduct (“Code 5”), recently the subject of a favourable ACCC draft authorisation, is a project that is informed in many ways by post-law thinking.

It replaces a professional conduct regime that has been based on rules and punishments with one that is based on professional values and guidance. It is not written as an abridgment of selected laws (such as workplace laws, discrimination laws, consumer protection laws, or privacy laws) but as an articulation of professional values drawn from the principle of Respect for Persons and from Ethics of Care normative theory. It requires Members to adopt professional values personally and to embed them operationally in their organisations.

You might have seen the Current Affair item, aired on 27 May 2019, which reported on a Western Australian “recruiter”, who was caught on the telephone speaking in a derogatory manner about a candidate, after having “stalked” the candidate via her social media account. The recruiter declined to proceed with the candidate because of what she found in her Facebook profile…or so the story goes.

You can view the Current Affair item here:

https://www.9news.com.au/national/a-current-affair-facebook-photos-cost-job-opportunity-claim-young-woman-voicemail-latest-news-australia/c673d680-cfd0-4f67-b12a-116f913f5e96

For her part, the recruiter attempted to deal with the media confrontation with as much grace as she could muster, given the embarrassing circumstances in which she found herself.

Industry stalwart, Ross Clennett was asked to comment as an expert recruiter (impressively as always) and several lay people offered their views – mostly amounting to “it’s unfair” or “it’s discrimination”.

What intrigued me – and I think it’s worthy of comment in this context – was that “unfairness” and “discrimination” are both claims-based concepts, which rely heavily on legal rules and procedures. And as far as the legal rules go, a claim of unfairness or discrimination might not be compelling in these circumstances.

There would be some evidence of indirect discrimination on the grounds of gender if the recruiter’s stalking of social media accounts were limited to the accounts of women candidates. But that seems to lead to a bit of a dead end in this case.

There might also be some issue about privacy. But the gravamen of the complaint is not so much that the information was collected, as the way in which it was used – or more specifically the adverse judgments that the recruiter made based on the information collected and the hurtful discussion that was overheard to take place between the recruiter and her colleagues.

Law states a rule, proves a breach and then looks for a remedy.

A post-law approach might ask a question – “What is the right (or professional) thing to do here?” And then looks for a pathway to the “right” or “professional” outcome.

There is a place for both, of course. And although post-law seeks outcomes that are within law  (i.e. they are lawful), its outcomes are not achieved by law.

That is why I think that a code, which can frame conduct – not as unfair, discriminatory, or a breach of privacy; but more accurately as “unprofessional” – provides a superior framework, in many circumstances. The conduct which was portrayed in the Current Affair programme is unprofessional precisely because it fails to demonstrate the respect and care due to candidates – respect and care, in the case of RCSA’s new code, providing the two broad ethical systems that inform Code 5 and its statement of professional values.

Strip away legal arguments about whether there has been unlawful discrimination, actionable unconscionability, or breach of privacy (with all its uncertainties about where the boundaries lie), and you’ve got a simple issue – Did the recruiter act professionally? That question is not so hard to answer.

And once it has been answered, the remedial and corrective pathways – freed of technical defences – provide, in my opinion, vastly superior means of achieving satisfactory outcomes that seek, not punishment and compensation, but improvement of professional standards and remedial conduct according to a standard of restorative justice that is “becoming of a professional member” of an industry association.

In many ways, that is quite close to what I mean when I say I’m retiring from legal practice to take up “post-law” practice.

But it doesn’t mean I get to go fishing… just yet.

For me, it means moving away from a model of legal practice that I’ve become familiar with over four decades to embrace a different model with new challenges.

I’ve said to a few people that I’ll be spending my time resolving disputes rather than agitating them. But, perhaps more accurately, I’ll be working with people to help them to find ways of solving their own differences.

I’ll be developing and encouraging the potential for professional self-regulation within the workforce enablement industry – meaning behavioural self-regulation in accordance with professional values, rather than the “closed shop”, anti-competitive type of industry self (interested) regulation that is often passed off as a code of ethics.

And, through learning design work with WorkAccord and through private research, I’ll continue to explore the field of knowledge that must still be mastered if there’s to be hope for emerging professionalism within a post-law environment.

So, I’m not actually “leaving the building”, as they say. I’m just moving to a different floor. Maybe one that’s a bit closer to the ground.

 

Andrew C. Wood