“By three methods we may learn wisdom: First, by reflection, which is noblest; Second, by imitation, which is easiest; and third, by experience, which is the bitterest,” Confucius
An important aspect of access to justice is the skill of adjudicators in both managing hearings and issuing decisions. How do we ensure that we have the right adjudicators to efficiently and fairly manage the hearing process as well as issue timely and fair decisions?
The appointment process is critical for selecting people with the right aptitudes and work ethic. However, the appointment process is not within the control of tribunals and is governed by politics. In some cases, governments have agreed to give tribunals more say in the selection process and there are varying levels of input from tribunals into the appointment process across the country.
Training and development are the keys to ensuring that adjudicators become good at their job. Training and development are within the control of tribunals. Adjudication is a different role for most of the people appointed to tribunals. Even for advocates who have participated in many hearings, the perspective of being the neutral at the front of the room is foreign.
Recent research on learning provides some useful insights for adjudicator training and development.
Importance of reflection
David A. Kolb has said that “learning is the process whereby knowledge is created through the transformation of experience”. He has defined effective learning as progressing through a four-stage cycle:
A concrete experience;
Observation and reflection on that experience;
Analysis and conclusions based on those observations and reflections; and
The testing of the analysis and conclusions in future situations, resulting in new experiences.
We generally talk about two types of learning: direct learning from one’s own experience (learning-by-doing) and indirect learning from the experience of others.
In a recent study, “Learning by Thinking: How Reflection Aids Performance”, Giada Di Stefano, Francesca Gino, Gary Pisano and Bradley Staats looked at the effects of reflection and the articulation of key lessons learned from experience (learning-by-thinking) on learning-by-doing.
They based their study on the common sense proposition that reflecting on what has been learned makes experience more productive. By reflecting, they mean the “intentional attempt to synthesize, abstract, and articulate the key lessons taught by experience”.
Such reflection can serve to consolidate what has been learned as well as making connections that may not come to light until this deeper reflection. The authors also argue that this boost in learning through reflection is caused by the impact of reflection on self-efficacy, “the belief in one’s capabilities to organize and execute the courses of action required to manage prospective situations”. In other words, reflection builds one’s confidence in the ability to achieve a goal which in turn translates into higher rates of learning.
Their findings suggest that reflection is a powerful mechanism through which experience is translated into learning: “in particular, we find that individuals perform significantly better on subsequent tasks when they think about what they learned from the task they completed.”
Teaching, mentoring and learning
In another recent study it was discovered that people recall more and learn better when they expect to teach that information to another person. Dr. John Nestojko, the study’s lead author, explained the results:
When compared to learners expecting a test, learners expecting to teach recalled more material correctly, they organized their recall more effectively and they had better memory for especially important information.
The reason for this is simple: teaching requires establishing key points and organizing information into a coherent structure; and organizing information and placing it within a coherent structure are critical aspects of effective learning.
From this finding, it follows that adjudicators should be encouraged to train and mentor their colleagues. Those who train and are mentors will become better adjudicators because of those activities.
Reading and talking
As electronic research tools become more effective, there is a tendency to move to a “just in time” model of learning. Rather than browsing through articles and decisions, adjudicators will pinpoint the current issue before them and focus on that. This raises the important distinction between organic memory (O-memory) and electronic memory (E-memory), both of which are necessary. This was recently discussed in the context of the medical profession, with some important analogies to the world of adjudicators.
Senior doctors and medical professors have expressed concern about the extent to which novice doctors rely on searching electronic databases to diagnose patients. Their concern is that this kind of learning is shallow and fragmented. Medical residents, like novice adjudicators, are in the process of becoming experts and that process requires the building of “a rich and interconnected database of knowledge in one’s own mind”. Cognitive science research and psychology have demonstrated that making quick and accurate judgments is dependent on possessing extensive factual knowledge stored in memory, not on an electronic device.
How do you develop such a mental database? Historically, in the medical profession, reading or browsing medical journals was the foundation for this internal database. Jerome P. Kassirer, a professor of medicine at Tufts University, notes that “we don’t always know what we need to know, and searches that are constrained to information we need at a given moment may not generate information that may be critically useful later.”
Applying this insight to the adjudication world, it is clear that adjudicators should be encouraged to browse tribunal decisions, court decisions and relevant articles. However, some learning about hearing management is not contained in decisions. There are articles available about some aspects of hearing management but the best way to learn about the issues that can arise in a hearing is to learn from the experience of others. (As Otto Von Bismarck is thought to have said, “only a fool learns from his own mistakes. The wise man learns from the mistakes of others”.) This illustrates the importance of a collegial culture in a tribunal and mechanisms for encouraging collegiality (a topic for a future column). It also illustrates the importance of mentors (not just one) for an adjudicator within a tribunal. Different perspectives on hearing management are invaluable, as adjudicators search for a style that fits their personality.
Tribunals should take the research findings on effective learning into account when designing training and development programs. Adjudicators need to build reflection into their practice. As well, adjudicators need to take time to read widely and discuss issues with their colleagues. Tribunals and adjudicators also need to have a dialogue about the appropriate workload balance to allow for the efficient adjudication of cases while also allowing sufficient time for an adjudicator to become better at his or her job.