In an article in the September issue of the ACC
Docket, entitled "Swarm Ethics", author James Nortz discusses a
technique to improve decision making in "circumstances that present complex
moral questions" which he designates as 'swarm ethics'. He uses this term to
set out a specific method for a decision making calculus and as a method to
have employees better accept final decisions that they may disagree with
through the fairness of the decision making process. It is analogous to the
Fair Process Doctrine for decision making. He also notes that this technique
may improve your employees' performance by making it easier for them "to leave
their ego at the door."
Nortz believes that the collective decision making
process can be a powerful tool and he delineates a six step process to
accomplish this dynamic. The six steps are:
Assemble a well-informed, multi-disciplinary team which has the expertise to
address the issue presented.
2. Avoid Bias. As a leader you must make clear that independent thought,
analysis and questioning will be valued in the process. You must set ground
rules to show that there will be no 'follow the leader'.
3. Full Exploration. Understanding that such a group cannot endlessly
debate, nevertheless there must be a full and thorough exploration and discussion
of the issues presented. The quality of the final decision reached is
"dependent on the accuracy and completeness of the information understood by
the decision makers."
4. Benchmarking. Your committee should test the conclusions against
similar examples in your industry. Fortunately in the compliance world, there
is wealth of the information and examples available and many compliance
officers are willing to share their experiences in implementing solutions.
5. Set Objectives. You should set your principle objective(s) to be
achieved and the general criteria to be used throughout this decision making
process. This should aid your group in coming to a solution for the problems
that your company is facing.
6. Secret Ballots. As the last step to avoid the dynamic of 'group
think' Nortz suggests that you consider using secret ballots to vote on final
or at least difficult issues.
Nortz has put together a cogent process for the
compliance professional to utilize when bringing a group of non-compliance professionals
together. A Chief Compliance Officer who is attempting to co-op or obtain
company-wide buy-in to help solve a compliance issue may well wish to utilize
some or all of these techniques.
Visit the FCPA Compliance and Ethics Blog,
hosted by Thomas Fox, for more commentary on FCPA compliance, indemnities and
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© Thomas R. Fox, 2011
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