The practical awareness of bias 


I'm afraid that I succumbed to the widespread public hysteria over 'Line of Duty', and the final episode of the latest series saw me on the edge of the seat, heart palpitating, during that last interrogation scene.  It is one of the Cosmic Unfairnesses of Life, that one sits through such an ordeal and then still does not know who 'Aitch' is at the end of it all.  I can't help feeling that Jed Mercurio must have a grudge against society, or a very perverse sense of humour.   Or probably both.

For me, the pièce de résistance of the whole series is that interrogation scene: the opposing parties face each other off, in that airless glass box.  Piles of documents are adduced, each one of which is carefully referenced.  The compelling nature of the drama hinges on the idea that, somewhere in this pile of data, there is truth to be discovered - but what actually occurs, more often than not, is that we are distracted by red herrings, or drawn down cul-de-sacs that go nowhere.  One begins to realise that seeing the wood for the trees is very far from being a universal gift, available to all of us.

And one finds that to be the case in other contexts, in the Real World, not one confected by Mr Mercurio.  I've taken recently to downloading, and reading samples from the proceedings of the Court of Appeal (Royal Courts of Justice), not simply as an antidote to insomnia, but because I find the documented interaction between the Appellant, Respondent and the Lord Chief Justices absolutely fascinating.  The transcript is actually a wonderful piece of literature, and one can read into it all sorts of nuances - irritation, bafflement, pathological repetition and instances of simply losing the plot.  And one can also see, being played out within the script, the ways in which human beings can so easily edge themselves towards strange or unwarranted decisions, simply because of the constraints of the interaction.  In the latest example I was reviewing, there are protracted sections where no one individual actually gets to finish off his or her own sentence, but where the arc of the narrative in fact gets completed by a series of interjections.  One is left wondering how different the conclusion might have been, if only a key protagonist had been able to complete the point they were seeking to articulate.  Group-think might be a good thing, but it's still being facilitated by human beings, and we bring plenty of bias to the table.

Nowhere is that more apparent when it comes to conducting the type of review which is necessary for effective and fair complaint-handling.  Based upon my experience, it seems to me that there are three primary models which can govern this process:  two represent unhealthy extremes, and one (it seems to me) is likely to be the safest way of managing things:

  • EXTREME (1):  Guilty unless proven innocent
  • MEDIAN:  Commonsense meaning of the narrative
  • EXTREME (2):  Innocent despite evidences
In practice, the ambulance-chasers operate Extreme #1:  what they are looking for is one piece of data, one significant part of the puzzle, on which they can hinge their argument.  You know this is the case because, although their strategy is to bury the 'respondent' under a deluge of threatening legalese, more often than not the matter will turn on one single key omission or unwary statement made by the Adviser.  To a slightly milder extent, the FOS tends to operate a similar model - one is conscious that, from a very early stage, the narrative is tending in one particular direction and it requires some considerable effort to slow the supertanker down before it obliterates some unfortunate victim of geography.

Equally well, in practice, Advisers (especially those who find themselves in the firing line) sometimes tend to operate under Extreme #2.  The process of engaging with the ambulance-chaser or CMC or even the FOS is not altogether helped by the shrill protestations of innocence and outrage, where the strategy is to fall back, fighting until waving the white flag of surrender is something of a foregone conclusion.  In a sense, this kind of response is hardly a surprise, given the way in which so many complaints are couched and pursued, a way in which the first casualty is truth, swiftly followed by principle and ultimately the poor Adviser.

In our opinion, the best and only way, is the one in the middle.  It may require more work because it is based upon the assumption that the client file presents a 'narrative' which glues the elements of advice together in a coherent way.  Sometimes, where the Adviser's preoccupation is on the smaller, granular component parts of the advice, this is not immediately apparent.  Many of us do struggle a little with the interaction between 'high level' and 'low level' advisory components - for example, cash-flow forecasting is an example of a discipline which brings the two together, in one place.  But the strength of this approach is clear:  it is the ideal antidote to bias.  Recognising that human beings struggle to approach contentious cases in a manner that is even-handed, and recognising our innate tendency to sift and prioritise the relevant data, according to our own ideological presuppositions, reviewing cases from the perspective of the most likely reading of the narrative seems to me to be the approach most likely to result in a 'fair' outcome, as it makes allowance for imperfections along the way.

And that's why ValidPath focuses on core standards relating to each of the key stages in providing advice, in order to generate a narrative that is both coherent and substantive, where it matters.

Kevin Moss, 16/05/2019