Interviewing and Dispute Management Notes

Learning Aims

  • Describe the nature and purpose of an interview
  • Develop knowledge of the components of an interview
  • Demonstrate knowledge of different types and styles of interviews
  • Explain different models for interviews
  • Describe, explain, and demonstrate the skills and techniques required for interviewing
  • Develop the ability to identify special factors that can influence an interview outcome

Understanding Interviewing

  • The nature and purpose of interviewing
  • Types of interviews and their contribution to managing disputes
  • Identifying parties to a dispute
  • Identifying components of an interview

The Purpose of Interviewing

  • The purposes served by interviewing are generally related to disputes or uncertainties.
  • It is a process that can:
    • Assist with clarification of the issues
    • Be part of the pre-negotiation stage and assist in determining:
      • The nature of the dispute
      • The best approach to take in managing the dispute
    • Be undertaken by solicitors when gaining information to assist an interviewee
    • Be a formal investigative, or forensic interview, for laying charges, litigation, or related uses
    • Be a technique that will assist with shuttle negotiation, a form of dispute resolution in which the parties do not come face-to-face but communicate through a third party
    • Be used to gain data in research

Types of Interviews

  • Interviews can range from informal to formal, or focused versus non-focused and structured versus unstructured; the same general components will be present in all.
  • Unstructured interviews will be used when the information sought is more exploratory, and a story-telling approach aims to obtain the maximum amount of information.
  • Focused and more structured interviews will be used in specialized interviews such as police interviews of complainants and accused, or asking questions in cross-examination or examination in chief.

Identifying Parties to a Dispute

  • Key questions suggested by Moore to assist in deciding the order for interviewing are:
    • Who are the most powerful or influential people in the dispute?
    • Who will be offended if he or she is not interviewed, or is not interviewed first?
    • Who should be interviewed first so that their cooperation can be used to induce others to participate in interviews?
    • Who is the person most likely to talk about the problem?
    • Who is seeking help?

Identifying Components of an Interview

  • Pre Interview:
    • Consider the information required, interviewee’s capacity, level of rapport sought, and interviewees needs.
    • Contact must provide details of the purpose for the interview, how long it will take, and an agreed time and location.
  • Opening Phase:
    • Remember non-verbal communication and allow time for the interviewee to comfortably converse about the matter.
  • The Interview:
    • The interviewer will generally commence the interview with open or simple clarifying questions.
    • Ideally, less interruption will enable the conveying of more information.
    • The latter part of the interview will entail more closed questions, checking details, and the option for the interviewee to provide any further information or ask questions.
  • Close:
    • Appropriate non-abrupt closure; any further interaction, or actions to be taken.

Using Theory and Models to Dissect Interviewing

  • Carl Rodgers:
    • Genuineness or congruence
    • Empathy
    • Unconditional positive regard
  • Danet’s Communication Model of Dispute Processing:
    • Hymes identifies eight facets in speech:
      • Scene setting
      • Participants
      • Ends
      • Act Sequences
      • Key
      • Instrumentalities
      • Norms
      • Genres

Using Theory and Models for the Purpose of the Interview

  • Interviewing is a specialized form of communication.
  • Techniques vary with the purpose of the interview
    • Solicitor client interview:
      • Obtaining relevant information and showing appropriate support and building rapport as well as clearly advising the client.
      • Evidence supports that clients taking an active part in problem-solving and decision-making leads to a better result for the client.
      • The accepted approach is known as a neutral client-centered style of interaction. This means adopting a non-judgmental, neutral, and empathetic approach.
    • Mediation a pre intake interview:
      • Clarifying the issues
      • Aiding in diagnoses of the nature of the dispute – false conflicts, data conflicts, or complaints
      • Assessing whether psychological counseling; grieving; or conflict coaching are needed
      • Deciding on the best approach or process to take towards managing the dispute

Models for Interviewing

  • Motivational interviewing:
    • An ‘interviewee-centered, directive method for enhancing intrinsic motivation to change by exploring and resolving ambivalence.’
  • Cognitive Interviewing:
    • Strong focus on preplanning, using a conversational style and allowing more control of floor and topic to the interviewee (who speaks when and what about) so they can follow a story-telling style with little interruption.
  • Timeline Interviewing:
    • A useful technique in complex matters where many events have happened, and timing is relevant or where the matter has unfolded over many years.
  • T – Funnels:
    • This model applies questioning in a layered manner and is one most commonly used in interviews in the law domain.

Using Knowledge of Interviewing to Assist in Dispute Management

  • Information – why interviewing?
  • Rapport building: A professionally respectful attitude
  • Nonverbal: Setting, body movements, speech tone and pitch: Maintaining an authentic presence.
  • Questions and other techniques.

Negatives and Positives of Interviewing

  • Negatives:
    • Interviews can fail to achieve the purpose of the interview. This can have consequences for interviewers in how they respond and conduct future interviews and also for the interviewee.
    • For dispute practitioners and lawyers, the party may decide to complain or certainly not return for another similar experience.
  • Positives:
    • A successful interview achieves its purpose and can manage a dispute without further processes being required, or can work within another process, such as litigation, or mediation, to clarify and manage the issues being addressed.

Special Considerations

  • Vulnerable interviewees: children, people with psychological disorders or mental or physical incapacities, people with a non-English speaking background and persons who have suffered violence, including sexual violence.
  • Unconscious Bias: interviewers need to consciously focus on reducing judgment and increasing empathy. Being flexible and open with a degree of detachment is important to avoid corruption of the information provided.
  • Neuroscience: is changing the way we understand human interaction
  • Ethics: no matter how ‘wonderful’ the information one may obtain from an interview it cannot necessarily be used if proper processes have not been followed.
  • Recording of interviews: recordings should be with the consent of those recorded and advice given on how the recording will be stored, when it will be destroyed and the purposes for which it can be used.
  • Cultural considerations: Consideration must be given to the interviewee’s cultural background; this should not be assumed and should be specifically appropriate to the individual.

Strickland v Commonwealth Director of Public Prosecutions & Ors

  • An ACC examiner questioned the four defendants in 2010, based on an agreement between the ACC and the AFP.
  • The defendants declined to participate in interviews under caution with the AFP but were then required to answer under threat of criminal punishment.
  • The examiner, in breach of the requirements of the ACC Act knowing that all four were criminal suspects, nevertheless permitted six to nine AFP officers to watch the examinations secretly from an adjoining room and permitted the interview recordings and transcripts to be made available to the AFP investigators and the staff of the Commonwealth Director of Public Prosecutions.

Fishbowl Role Play

  • Structure for role play:

    • 5 minutes of role playing
    • 5 minutes of class discussion

  • Investigation into tax fraud

    • Three students, two as police officers do an interview role play based on the following scenario.
      • Australian Federal Police interview by two people
      • White collar crime
      • Interviewers seeking information about whereabouts of certain documents
      • Company Director tries to be coy and deceptive
      • Interviewers play – tough cop and nice cop.

  • Cross examination at murder Trial

    • Three students – a witness, cross examiner and Judge play the following
      • Witness starts off for first 2 minutes giving clear evidence of witnessing stabbing at night
      • Seemingly very strong evidence
      • Conduct a cross examination can you get the witness to finally admit to lying.
      • You are aware that the witness has
        • Night-time (poor eyesight)
        • Just got out of bed (uses glasses)