Transactional engagement v Relational engagement /  by William Lye

Everyday we engage in transactions.  For example, we buy a train ticket and in return, we get to hop on the train that will take us to our destination.  We pay for the food we want to eat.  We pay for the service of a hairdresser.  We get paid for the work we do. Our life revolves around handing over our hard earned cash in return for the goods or services we desire or need.  This continuous cycle of 'give and take' as a form of exchange make us good at transactional engagement.  Sadly, it also means that we forget the power of relational engagement, which concerns the way in which people think about each other, stay connected, and do their best to look after one another.

On a recent business trip to Shanghai with a client, I experienced a special treatment from my client that can only be explained by my client’s relational engagement and thinking.   We left Melbourne bound for Beijing as the transit point to Shanghai.  I travel with a carry-on bag as experience has shown me it is the best way to avoid delays and lost luggage.  My client, however, checked in his luggage. Our flight was scheduled to arrive in Beijing at 5.50am, and our connecting flight to Shanghai was at 7.30am.  

Our plane landed in Beijing at 6.35am. Most people would assume that their checked-in luggage would be transferred to the connecting plane bound for Shanghai.  It turned out to be 'wrong'.   All checked-in items of luggage have to be collected, and then re-checked in again for the connecting flight.  My client told me to go to the gate first while he finds his luggage. The time was 7am.  Boarding had commenced. Suddenly 5 minutes at the security checkpoint seemed like a very long time. To make matters worst, I was asked to open my bag to show the officer my battery pack, which had to go back through the security scanner again.  As soon as I took hold of my items, I made a dash to the gate. I was the last person to board. The gate closed at 7.15am. My client was nowhere to be seen. I told the stewardess that I was travelling with my client.  It was too late.  The Captain had directed the doors to the plane to be shut.

I was already hyperventilating as I tried in vain to contact my client on the phone.  The plane departed at 7.50am. I was desperate, as I did not have the address of our meeting place in Chinese.  My Mandarin was also rusty so I had to figure out how to convey the directions to a taxi driver to take me to our meeting place.

After landing in Shanghai, I turned on my phone's 'data roaming', at which time the phone just rang.  The call appeared to be from an Australian mobile phone number that I did not recognise.  It was not my client's mobile phone number.  I answered the call cautiously knowing that I would likely incur very high charges.  'Hello, this is Kent. Steven asked me to call you.  He missed his flight and will be on the next flight.  I am currently in Australia but Shanghai is my city.  Steven asked me to make sure you are okay.  I have arranged my driver to pick you up.  Don't worry!'  I was gobsmacked!  Steven is a native of China but he is not from Shanghai.  He called on his circle of friends to help me.  He took active steps to arrange for my own journey while he was himself delayed in Beijing.  His friend was not even in Shanghai, who called on his other circle of friends to ensure that I was being well taken care of. 

It took over an hour for me to get to my destination. I reflected on what my client did for me.  It was not the first time I had travelled to Shanghai. Catching a taxi was never a problem for me.  However, I experienced a special kind of treatment from a client who was very adept at relational engagement and thinking.  He thought of me instead of his own predicament.  He made every effort to ensure that I was not feeling pressured or stressed.  My client eventually made it to the meeting after lunch that day!

I felt honoured to receive such thoughtful treatment.  It made me ponder about how little time we spend actually engaging with people. Our day is often made up of communicating through social media platforms.  We have become good at ‘finger typing’ and faceless engagement.  We use our phones to pay for goods and services.  We prefer 'display to display' conversation rather than ‘face to face’ engagement.  We have become transactional.  We need to get back to being relational by spending 'in-presence' time strengthening our relationship with our circle of friends and family. We must remind ourselves that unless we make effort to nurture and build strong relationships with people, we will remain in a cycle of transactional engagement.  To me, transactional engagement is linear involving ‘giving and taking’ whereas relational engagement is organic. It grows as we invest our time in people.  It is all about 'giving and receiving'.  It is authentic.  It is special.  It should not be lost in a sea of transactions.

 

Laddering past the ceiling /  by William Lye

   Much has already been written about the bamboo ceiling as an invisible barrier to professional advancement for Australians with an Asian cultural background.

   In a recent post published on LinkedIn (https://www.linkedin.com/pulse/bamboo-ceiling-asian-talent-missing-from-boardroom-asx-kylie-hammond?trk=hp-feed-article-title-comment), Kylie Hammond, CEO of Director Institute, reiterates what we already know, i.e. there is very low representation of Asian executives in leadership positions and in the boardroom. 

   In theory, it makes sense to have diversity of representation, whether it is gender, and/or cultural difference. It is now beyond anecdotal evidence that a diverse workplace is good for business.  So, why is there still a perceived reticence in embracing diversity at the higher echelon of leadership and business?

   It can be very difficult to alter one’s business and philosophical mindset especially when it has been successfully implemented for generations. 

   Change, however, is an evolutionary process.  It is therefore natural to treat change with caution. But even when there is an economic incentive for change, it is often a very slow process of shifting the emphasis from exclusion to inclusion especially when there are fewer role models to champion the process.

   It may be trite to say that many businesses don’t know what they don’t know.  Yet, it is true when one is comfortable and not challenged for survival.  Businesses in that frame of mindset are possibly shielded in part from the ravages of competition from a rapidly growing Asian economy because they are within their own microcosm of enterprise.  It has not hurt their bottom-line so they are happy to remain in maintenance mode. 

   Businesses seeking to capitalise the opportunities in the Asian century, however, need to recognise that remaining static in the comfort zone of one’s business environment will likely lead to commercial extinction.  Sustaining the stream of future revenues is no longer viable if there is no positive creative process put in place for a change of mindset to embrace diversity of thought so as to move from maintenance mode to growth mode to capture the expectations of a diverse consumer market.

   From a practical view-point, Hammond pointedly suggests businesses could apply two key criteria to address the lack of diversity of thought, and diversity in perspectives and cultures.

·      Develop a skills matrix to fill in the gaps

·      Specifically, develop a diversity criteria to bring in fresh dynamic talent

   But in practice, it remains for most a challenge in the boardroom partly due to a fear of the unknown, and partly due to not being invested in embracing the dynamics of cultural change.  The key is to take small steps. By developing a skills matrix to consider cultural gaps to fill, businesses are likely to find hidden talent under the radar.  Remaining static, however, is no longer a viable economic option, as others will find the best talent out there first.

   Conversely, rationalising that an invincible barrier hinders the rise of talented people continues to reinforce negative stereotypes of minorities.   The bamboo ceiling has likely reached its full height. It is time to scale the ladder of equality of opportunity and move from rhetoric to action.

   At a talk on Cultural diversity in the workplace at Herbert Smith Freehills’ Melbourne office on 11 March 2016, Commissioner Tim Southphommasane observed that:

·      Champions of gender diversity have skin in the game and embrace diversity because they want to see equality of opportunity for their children

·      Some rationalise that there is a lack of bandwidth as the reason for not seeing greater representation in leadership and the boardroom

   Leaders in the boardroom need to consider getting skin in the game otherwise there will not be any discernible improvement. Perhaps the starting point is for Chair-persons on Australian boards to champion and afford the opportunity to willing and able Asian Australian talents a chance to be included in the boardroom or in leadership positions.

   While it is not surprising that there are fewer Asian Australians at the upper echelon of leadership and business, Leaders in the boardroom can speed up the process of identifying, developing and nurturing the pool of younger Asian Australian talents by offering a pathway of advancement for them.  

   Reality TV has been an equalising platform to discover a rainbow of hidden talents.  For example, many talented characters of color emerged from programs like Australian Idol, X Factor and Master Chef.  This suggests that by increasing bandwidth there will likely be more balanced representation of talent from a wider spectrum of talent.   

   The more visible diversity becomes, the more likely we will see Asian Australian talent rising up to the occasion.

The High Court has spoken on the Advocate's immunity from suit /  by William Lye

It has been the law in Australia that the Advocate's immunity extends to work done out of court which leads to a decision affecting the conduct of the case in court.  This immunity extends to protect a solicitor involved in the conduct of litigation in court. The application of the scope of the duty is often difficult and unsatisfactory, leading to calls for its abolition.

In a 5-2 decision, the High Court of Australia (FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ) decided today in Attwells v Jackson Lalic Lawyers [2016] HCA 16 that the Advocate's "immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court. In particular, the immunity does not extend to advice that leads to a settlement agreed between the parties."  

The majority considered that in the case before it, there was no determination by a court as "the consent order and associated notation by the Court reflected an agreement of the parties for the payment of money in circumstances where no exercise of judicial power determined the terms of the agreement or gave it effect as resolving the dispute. The consent order may have facilitated the enforcement of the compromise, but it was the agreement of the parties that settled its terms."

This means that if a client is advised by its lawyer to settle a case and enters into terms of settlement evidencing their agreement without any "judicial determination" by the court then the advocate's immunity does not apply if the lawyer is negligent in providing that advice.  In other words, the lawyer is not immune from a legal suit for providing the wrong advice even if consent orders were made by the Court.

NETTLE J (who along with GORDON J dissented) accepted  that "when a matter is settled wholly out of court, the settlement does not move the litigation towards a determination by the court. Consequently, advice to enter into such a settlement does not attract the immunity."  His Honour, however, differs from the majority as to when "judicial determination" occurs as he considers the immunity applies "where a matter is settled out of court on terms providing for the court to make an order by consent that determines the rights and liabilities of the parties, the settlement plainly does move the litigation toward a determination by the court."  

GORDON J, in dismissing the appeal, considered that there was a final quelling of the controversy between the parties by the consent order, i.e. by the exercise of judicial power.  Her Honour considered that work that contributes to the final quelling of a controversy by the exercise of judicial power is "work intimately connected with" work in a court.

The High Court (with whom the dissenting justices NETTLE and GORDON JJ agreed), however, did not abolish the application of the Advocate's immunity. The justices did not see any need to reconsider its earlier decisions on this issue in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and Giannarelli v Wraith (1988) 165 CLR 543.  The  majority said that "an alteration of the law of this kind is best left to the legislature."

For now, Advocates continue to be immune from suit when they undertake work as an officer of the Court in the quelling of disputes which contributes to the exercise of judicial power and determination by the Court.

Diversity at the pointy end of the leadership pyramid /  by William Lye

Does diversity make us smarter?  Katherine W Phillips wrote a piece in October 2014 published in Scientific American addressing this question.  She posits that people with diverse individual expertise and different backgrounds enhance creativity which leads to breakthrough innovations. See http://www.scientificamerican.com/article/how-diversity-makes-us-smarter/?wt.mc=SA_Twitter-Share

Most people in businesses or corporates will probably agree that having diversity (whether it is gender, race, ethnicity or sexual orientation) in the workplace is a good thing.  For starters, there is a better chance to experience different food and language!  The real question is: For whom is diversity really good for?

When it comes to leadership positions, we see a different set of statistics - there is an apparent lack of diversity in corporations  and public office. A "diverse" workplace certainly brings out the creative and more diligent "workers", and they make the CEOs look good! Imagine a work place with greater diversity at the pointy end of the leadership pyramid!! Creativity abounds. Nothing is impossible. Everything is conquerable!!