Early Resolution - are you missing an opportunity?
Our “Focus on Resolving” article in the May 2021 issue of our newsletter mentioned some tips that might help you resolve a complaint in the firm. We also said that even if the complaint did end up at the SLCC, you and we could work together to try to resolve a service complaint.
Missed opportunities
The Act only requires you to engage with us once we’ve classified a complaint as eligible for investigation. But we think you are missing opportunities if you wait that long. We’d like to start the dialogue as soon as our investigator picks up the file. That’s because at this stage they’re not so much investigating, as consciously looking for any possibility of resolution or early closure. That could include assessing whether the complainer would feel vindicated if the solicitor just apologised for any errors or mishaps. They might need to explain the Latin term that the solicitor used to reassure the complainer that the solicitor has acted in line with usual practice. They might ask the solicitor to clarify a point. Such a request doesn’t mean the investigator doesn’t understand the procedure – they’re looking for your comment on what you meant, often in order to convey it in a different way (or even in translation) to the complainer.
And that should not be seen as a criticism! Anyone who works with words no doubt appreciates that everything said or written could always do with some editing…
Reasons to engage
But there’s far more behind our suggestion that you should engage. The bar for accepting a complaint as eligible for investigation is really low. That means that if we only hear one side, we will invariably conclude that an investigation (the third stage of our process) is needed to get the other side – and that means more time, more cost and more anxiety for everyone involved. Your short answer – with your explanation - might make all the difference to our decision whether an investigation is needed. Last year, we were able to resolve around 20% of new complaints at this early stage.
Even if the complainer isn’t willing to resolve, the solicitor’s engagement may allow us to decide that a complaint is without merit or that it would not be proportionate to investigate. Typical examples could be a solicitor showing us, when we notify them of the complaint, that they had explained something, done something, taken instructions, weren’t responsible for delays or that there were no independent witnesses to a disputed conversation or event. Of course there will be cases where we decide we do need more information, and we move a case to investigation to call for the files that will allow us to do a detailed inspection of the evidence.
Investigation timescales
One of the most frequent comments we see in our feedback, both from solicitors and complainers, is that our investigations take too long. The Act prescribes all five stages of our process, and we are on record as saying that we don’t think it’s proportionate or desirable. Our recent Scottish Public Service Award demonstrated the improvements we made in our journey times and responses, through implementing whatever innovative and agile processes the Act allows. But we are stymied when faced with a solicitor who doesn’t engage, isn’t prepared to hear us out on our suggestions for improvement, needs reminders, or doesn’t send us the relevant papers or files at all.
You’re working in a regulated profession, and your regulators ultimately have the same goals - to improve the image, standards, and viability of the profession. One result of poor engagement is loss of public confidence in the system that doesn’t appear to be moving fast enough. Another is wasted time to the SLCC – and that ends up reflected in our levy. But for the individual who isn’t engaging, there’s an even more unfortunate direct consequence. The longer a complainer has to wait for a decision, the more entrenched becomes their resentment and the less willing they are to consider resolution. That has a direct cost, time and emotional impact on the practitioner - and it most often could have been avoided.
Your relationship with your client is rooted in Terms of “Engagement”. Doesn’t it make sense to extend that good “engagement” to us too?