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Using alternative dispute resolution in privacy Joanna Hayward
27 March 2015

privacy geek

Resolving privacy complaints is one of the most important things we do as an office. Last year, we received 725 complaints and 2015 is not slowing down.

As we wrote about in this earlier blog post, we’ve been carrying out a concerted blitz on our existing complaints workload to transform the way we deal with complaints.

The Privacy Act gives us a number of tools for handling complaints, and after an initial assessment we can choose the most appropriate course of action for the complaint. One of these options is alternative dispute resolution (ADR).

We’ve been inspired by the results achieved by the Australian Privacy Commissioner’s Office through a greater focus on ADR. One of the things they told us was that they’ve realised that sometimes they have to “get out of the way” so that the parties can resolve things themselves.

This week we hosted two experienced practitioners from the Australian Human Rights Commission (AHRC) who had worked with the Australian Privacy Commissioner’s team. We had invited them to come and work with us over two days.

These guys from AHRC’s Investigation and Conciliation Service handle a range of discrimination complaints including racial, sexual, age and disability discrimination, and their method for handling complaints through ADR is comparable to our own.

Their various pieces of legislation allow people to bring complaints, for those complaints to be investigated, and for the AHRC to ultimately reach a view on the complaint under the law. It is very similar to our system.

The AHRC’s preference is to tackle complaints quickly using ADR. Its ADR success rate is up around 70 percent. We would like to get to that kind of rate too. Our ADR process is voluntary but the Privacy Commissioner can call a compulsory conference to try to get a resolution.

We think that ADR has some real benefits for both the complainant and respondent. It’s quicker, cheaper, less formal and private and can result in positive change for both parties.

It’s not a panacea and it takes preparation on our part. But its flexibility opens up a broader range of options.

For example, resolution might include an apology or an acknowledgement, a promise of confidentiality, a change in an agency’s processes, staff retraining, or a compensatory payment. We’ve seen rugby tickets, flowers, and boxes of Central Otago apricots help get things settled.

Our Office has to have the skills to encourage the parties to talk to each other and think about different options to reach mutual resolution. We have to ensure an impartial and confidential environment and a fair process for ADR to take place. We can do this.

Some complaints are part of a larger conflict situation, have a high level of emotional distress, highly entrenched parties or a marked power imbalance. This takes a lot of skill, but we think we are up to the task.

The Australian Human Rights Commission training was a chance to come together (with our counterparts from other agencies with an interest in ADR) and share best practice. We talked about a number of strategies and techniques, from listening and questioning, through to option generation and process considerations.

The trainers explained it thus. We are helping the parties to reach their own resolution under “the shadow of the law”.  What we want is a process that is fast and clean and allows parties to get on with their lives. We still have our formal powers where a complaint can’t get resolved through ADR. But our aim is to save formal investigations powers for those complaints that don’t respond to ADR first.

As the mediator said to the zombies; “so, he wants his brain for thinking - and you want his brain for food. What I’m hearing is that brains are important to BOTH of you.”

Privacy geek image via the Office of the Privacy Commissioner of Canada.

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