One of the big differences in a corporate compliance function and in-house legal department is that compliance is there to prevent, find and fix problems while the legal department exists to protect a company from the problems it gets itself into. Moreover, as Roy Snell, Chief Executive Officer (CEO) of the Society of Corporate Compliance and Ethics (SCCE), continually reminds us, it is this ‘fix’ component requiring a Chief Compliance Officer (CCO) to remediate problems, even when a corporate law department is trying to protect the company from criminal or civil liability. Put another way, a CCO must engage in creative problem solving.

In a recent Harvard Business Review (HBR) article, entitled ““Sorry” Is Not Enough”, it speaks to what is the best manner to impact customer services. As I read the article I became more convinced that it spoke to the role of a CCO that Snell has been talking about all this time. In customer service, it turns out that finding solutions is the key which separates a successful interaction by a customer with a problem from one in which the customer walks away dissatisfied. In the article it was called “problem solving work”; that is, work by a customer service function which found a solution for the customer.

One thing that compliance officers must never forget is that their customers are company employees. This means when an employee comes to you with a problem, they need you to fix it or to help them fix it. As the article noted, customers cared less about the actual outcome than about the process by which the employee tried to offer assistance. “It’s not about the solution—it’s about how you get there.” Once again, the Fair Process Doctrine raises its head not only in the corporate world but specifically in the compliance realm.

The basis of the article was a study by a team led by Jagdip Singh, of Case Western Reserve, who obtained and analyzed videos filmed at airport customer service desks in the US and UK. Their findings broke customer interactions into three phases which every compliance professional should work to understand. They are: “sensing (in which the employee asks questions to try to understand the issue), seeking (in which the employee brainstorms and explores potential solutions), and settling (in which the employee works with the customer to choose the solution that will provide the best outcome).” Most interestingly, “Singh’s research suggests that companies may benefit from teaching employees to find imaginative answers to service problems.” That last quote is instructive as it is definitely not the role of a corporate legal department to find “imaginative answers to service problems” but is exactly what a compliance professional is called upon to do.

At the most basic customer service level, it is not about giving a customer services representative a script with the right words to use. It is about finding solutions. I once listened to an intriguing conversation by my dentist, Dr. Batiste, on her hiring of a new dental technician. Dr. Batiste said what she looks for in a dental technician is more than simply technical qualifications of even technical competence. She is interested in whether or not the dental technician is a problem-solver. She said the issues her office faces are varied and wide ranging every day. It can be 10 people in the waiting area who ‘dropped in’ with no scheduled appointment; to more complicated dental and even medical problems; to financial and insurance issues; to tech issues around things from computer signatures to X-Rays machines. In other words, a wide variety of issues far beyond the technical competence. Diverse problem-solving is what the compliance professional must do.

As a companion to the HBR piece, there was interview with Bob Easton, the chairman and senior managing director of Accenture’s Australia and New Zealand business. He was intrigued by Singh’s research because it related to how person’s, even as high in an organization as is he, interact with customers under stress. He noted that as an executive, he is a “front-line service worker” and if Easton is, that means every CCO or compliance practitioner is as well. Easton had two interesting insights on the research.

The first is how to deal with issues when something goes wrong. Easton stated, “We’re all trained to apologize when something goes wrong—and the desire to do so is almost instinctive. Lately, though, I’ve avoided words like “apologize” and “sorry.” Instead, I’ll say something like, “I acknowledge the problem, but you probably want us to move immediately into finding options to solve it, so let’s start talking about the options.” This goes against our instincts, but it’s very effective. Clients care less about the apology and more about how quickly and effectively you present options and solutions.”

The second is that to fully fix a problem, or remediate, you need a combination of data coupled with intelligence. For the compliance professional, it is not about simply saying ‘no’ but creative problem solving. This is where compliance professional who can read a spreadsheet has a very large leg up on the legal department folks who do not know how to do so. With the Department of Justice’s (DOJ) continuing focus on the operationalization of compliance this will become more important.

Corporate compliance should exist to do compliance, not be a paper program run by lawyers. Compliance should be there to solve problems. In many ways compliance is the fulcrum corporate discipline because it touches so many aspects of the corporate world. When the senior managing director of Accenture in two countries says he is a frontline service worker, it clearly speaks to the compliance professional to have a similar understanding. For a corporation to actually do compliance, it must be done in conjunction with the other corporate functions.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2018

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