Preliminary Inquiry v. Investigation: Before the Volcano Erupts
By Shaaron Jones-Crawford, Harold Tan, David Stinson
While Investigations and inquiries are familiar services to clients, we introduce an earlier option within this category known as Preliminary Inquiry. This type of Preliminary Inquiry is an early warning protocol that may be activated before formal charges are formulated. It provides an opportunity for a Retaining Client to minimize their financial, organizational and reputational costs by taking pre-emptive action.
“No human action is ever truly random” (Sherlock Holmes)
Inquiry and investigation are two terms which we often use interchangeably, but they have distinct meanings and applications. An inquiry is a more open-ended approach that may occur when allegations are in mid-formation or pending litigation. Due to its earlier timeline, an inquiry is typically smaller in its mandate and scope.
An Investigation is a more focused, structured approach that seeks to uncover specific facts related to a particular issue. Investigations are often triggered when there are substantive charges which gives rise to the need for an external, neutral third-party to gather and evaluate the facts and evidence. Investigations are pre-litigation and may be used in mitigation.
From our practice, we propose there is a preceding filter which we identify as Preliminary Inquiry (PI). A PI is an initial assessment which may offer early exploration, without waiting for formal charges. PI is a platform for uncovering developing signs and signals before they become potential crises. We will discuss Investigation, inquiry and PI. All three approaches require an Independent to gather information and evidence, culminating in a written report that may have findings, recommendations and proposals based on the Retaining Client’s instructions.
We propose that PI could be an opportunity for earlier assessment that Practitioners can offer to commercial clients.
We use the metaphor of a volcano to illustrate the three approaches to this subject.
In an Investigation, the volcano has erupted. In an inquiry, the volcano is in its pre-eruption stage. In a PI, the volcano is in its early warning stage.
An Investigation is a systematic, thorough process of gathering and analyzing evidence and information to uncover facts about a particular charge. The purpose of an Investigation is often to determine the truth or accuracy of the charge. Investigations typically involve a variety of time-consuming elements, including: longer file history; severe charges; extensive interviewing; greater research, collection and analysis of evidence and data.
Because there are formal charges, Investigations are more specific and address the veracity of the charges. Usually there is a hard completion deadline, as this report is frequently the pre-cursor to a more formal legal process. In an Investigation, the volcano has erupted: lava is flowing; the air is black with volcanic ash; full evacuation is underway.
An inquiry is often a process where there is an exploration of specific issues or questions to gather information and knowledge. Senior Management is aware of potential dysfunction through routine channels (e.g., staff meetings, uncompleted deadlines, etc.), but the scope and gravity are unknown. Concurrently, the organization’s dispute resolution clause has been activated; the ticking clock to litigation has started. The objective of an inquiry, which is typically smaller in scope and mandate, is to identify the problem(s) and prevent similar issues from re-occurring in the future. In an inquiry, the volcano is in pre-eruption: the ground is hot with landslides; visible sulphur and ash are in the air; limited evacuation has been activated for vulnerable populations.
PI is a precursor to more expansive and detailed approaches such as inquiry or Investigation. PI typically is initiated when events are fluid, some qualitative and quantitative data has been gathered by Senior Management, and there is some indication of discord. Data is often collated from a variety of sources, including: Senior Management meetings; missed deadlines; customer complaints. PI is best suited for organizations where the Retaining Client is not risk-adverse and is prepared to invest resources to pre-emptively identify the fractures.
As such, PI reports are typically shorter and concise because they: have a generalized overview of the issue(s); identify emerging trends; do not necessarily identify specific parties; and do not allocate cause and blame. PI is focused on present day only, not the past. Interviewees are not actively defending or accusing, but rather sharing their thoughts, concerns and positions at this early formation stage. In PI, the volcano displays early warning signs: suspicious clouds are rising; sulphur is wafting; tremors have activated the emergency management committee.
We introduce a successful application of PI which we have named “Pluto”.
A multi-site business is experiencing significant drops in productivity, rapid turnover in both employee and management ranks, and higher than average absenteeism. There have been no formal, registered complaints or identified disputants. Neither subject matter, complainants nor respondents have been named. However, in informal settings, Senior Management is now aware of comments made in respect to racism, sexism, ageism and other human rights issues.
Pluto clients have openly commented on the degradation of service quality and deteriorating relationship between staff and management.
Pluto requested an Investigation. In the introductory conversation with Pluto, we noted there were no specific details or charges, and that all allegations were based on supposition. The facts presented by Pluto met the criteria of a PI. In the absence of specific allegations, we offered PI as a more expeditious and less expensive option.
Pluto accepted the PI option. Extensive, confidential interviews were conducted across multiple sites with employees. In their disclosure, the employees shared their personal experiences of racism, sexism, ageism, breach of workplace ethics and abuse of power. A concise report was written for Pluto formally identifying substantive issues. The report further offered expedient, short-term recommendations to mitigate the current situation, along with medium and long-term proposals to address underlying factors.
In our practice, PI is not applicable for areas such as: entrenched employment and labour, severance, probate, family matters, etc. Because PI focuses on early assessment, files with longer, deeper interpersonal histories do not meet this requirement. PI works best where the issues have not been definitively identified and charges cemented, and are best suited for legal areas such as: contract, commercial, employment, administrative, real estate, tort, etc.
For the client, early intervention pre-empts a longer and more costly approach. Confidentiality is maintained, exposure to liability, severance, budget and insurance are reduced, spread to media is limited, organizational reputation and stock values are safeguarded.
Early warning systems are critical in all disruptions; Preliminary Inquiries can pre-empt more serious, future consequences.
Shaaron Jones-Crawford is an internationally trained Barrister with experience in Mediation, Arbitration and Alternative Dispute Resolution. She holds an LL.B and LL.M., called to the Bar of England and Wales and is a member of The Honorable Society of Lincoln’s Inn in London, England. Shaaron holds a Chartered Mediator (C.Med.) designation from ADRIO/ADRIC.
Shaaron holds an Executive Certificate of Conflict Management (EC.CM) from Windsor Law School, and also holds a Certificate in Adjudication (Osgoode Law School).
Shaaron is also a licensed Attorney-at-Law in the Caribbean, which permits her to practice in multiple Caribbean jurisdictions. Shaaron practices predominately in corporate/commercial ADR.
Harold Tan is a Mediator, Investigator, Adjudicator, Author, Humber College (Longo School of Business) faculty, and York U (Continuing Studies) coach. He holds a LLM (Alternative Dispute Resolution) from Osgoode Law School, a Qualified Mediator (Q. Med.) designation with ADRIO/ADRIC, and a Chartered Community Mediator (CC. Med.) designation with the Ontario Community Mediation Coalition.
He holds an Advanced Certificate in Peacemaking Circles (University of Waterloo), and is trained in Restorative Justice (Ontario Ministry of the Attorney General). Additionally, he holds a Certificate in Adjudication (Osgoode Law).
David Stinson is a Mediator, Investigator, Negotiator, Facilitator, ADR Neutral, Trainer, Conflict Coach, Restorative Justice Practitioner, and Author. David holds a BASc. (University of Guelph), Business Administration Certificate (TMU), and Police Leadership Diploma (Humber College). Additionally, he holds specialty police training in advanced investigations, risk management, threat assessment, covert operations, community mediation. David subsequently joined the Toronto Transit Commission-Human Resources involving human rights, criminal, unionized and non-unionized labour investigations, and specializing in probative/non-probative interviews and case reports.
