Consumer vulnerability and complaint handling: challenges, opportunities and dispute system design

Effectively designed complaint handling systems play a key role in enabling vulnerable consumers to complain and obtain redress. This article examines current research into consumer vulnerability, highlighting its multidimensional and expansive nature. Contemporary understandings of consumer vulnerability recognize that the interaction between a wide range of market and consumer characteristics can combine to place any individual at risk of vulnerability. While this broad definition of consumer vulnerability reflects the complex reality of consumers’ experiences, it poses a key challenge for designers of complaint handling systems: how can they identify and respond to an issue which can potentially affect everyone? Drawing on current research and practice in the United Kingdom and Australia, the article analyses the impact of consumer vulnerability on third party dispute resolution schemes and considers the role these complaint handling organizations can play in supporting their complainants. Third party complaint handling organizations, including a range of Alternative Dispute Resolution services such as ombudsman organizations, can play a key role in increasing access to justice for vulnerable consumer groups and provide specific assistance for individual complainants during the process. It is an opportune time to review whether the needs of consumers at risk of vulnerability are being met within complaint processes and the extent to which third party complaint handlers support those who are most vulnerable to seek redress. Empowering vulnerable consumers to complain presents specific challenges. The article discusses the application of a new model of consumer dispute system design to show how complaint handling organizations can meet the needs of the most vulnerable consumers throughout the process

Supporting discretionary decision-making with information technology

A NUMBER OF INCREASINGLY SOPHISTICATED technologies are now being used to support complex decision-making in a range of contexts. This paper reports on a project undertaken to provide decision support in discretionary legal domains by referring to a recently created model that involves the interplay and weighting of relevant rule-based and discretionary factors used in a decision-making process. The case study used in the modelling process is the Criminal Jurisdiction of the Victorian Magistrate’s Court (Australia), where the handing down of an appropriate custodial or non-custodial sentence requires the consideration of many factors. Tools and techniques used to capture relevant expert knowledge and to display it both as a paper model and as an online prototype application are discussed. Models of sentencing decision-making with rule-based and discretionary elements are presented and analyzed. This paper concludes by discussing the benefits and disadvantages of such technology and considers some potential appropriate uses of the model and web-based prototype application.C

Implications for therapeutic judging (TJ) of a psychoanalytical approach to the judicial role — Reflections on Robert Burt's contribution

Robert Burt in, “The Yale School of Law and Psychoanalysis, from 1963 Onward”, in this issue, explains and laments a decline in influence of psychoanalytic ideas in legal thinking. He notes “the fundamental similarity that both litigation and psychotherapy involve recollections of past events”, buttressing his argument with eight parallels between the two. In this article we take up Burt's theme, first noting the relationship between therapeutic jurisprudence and psychoanalytic concepts before presenting an outline for a psychoanalytical understanding of the judicial role. We then consider the litigation process from the linked perspectives of therapeutic jurisprudence and psychoanalysis before closing with a reflection on the eight parallels elaborated by Burt

From accreditation to quality mediation practice – Next steps?

Quality professional standards for mediators, both in Australia and overseas, have largely focused on minimum standards required for accreditation of practitioners and the ongoing maintenance or practice standards. The implications of this approach for quality vary, as the entry hurdle can be high or low (aspirational or realizable), and ongoing practice standards can be onerous or otherwise. Certainly, appropriate standards can make an important contribution to practitioner competence and the delivery of good practice. However, there are limitations to this approach for consumers, for practice and for the quality culture that is created. An extension of the standards approach may involve the development of a quality framework which can be viewed as requiring more than reaching a benchmark or standard of practice. Instead it can be regarded as the systems, processes and procedures that promote best practice and continuous improvement, as well as minimising risks and poor practice (Commonwealth Attorney General’s Department, 2001). Recent research has suggested that while the NMAS may minimise risks it may not necessarily promote excellence in practise – excellence and ‘best’ practice will require more.Many quality systems designers suggest that in order to entrench quality systems and outcomes, it is important to create a quality culture rather than a compliance culture. This means a culture committed to continual enhancement of its quality rather than just making sure that a framework meets the minimum standards required (Syme) In the conflict resolution area, this may require ensuring that practitioners who are involved in facilitative processes are valued, and that an environment that promotes innovation and high quality services is fostered

Facilitative judging

This article considers the role of judges and their relationship with Alternative Dispute Resolution (ADR) processes. The article first describes the evolving nature of the relationship between courts and ADR and then, more specifically, comments on the nature of the judicial function and the relationship with ADR before returning to issues associated with the broader objectives of a combined ADR/court system. The discussion is undertaken to explore two questions - first, to what extent are ADR processes currently separated from judicial functions - and, second, how can ADR skills and techniques be used to support the civil litigation system including the judicial function