Book review: OMBUDSMEN AND ADR: A Comparative Study of Informal Justice in Europe by Naomi CreutzfeldtPosted: July 6, 2018
By Carolyn Hirst
I am delighted to have been asked to review this book by Naomi Creutzfeldt, who is an academic and researcher whose work I greatly value and respect. For someone who works as a pracademic, and so benefits from understanding both the practice and theory of ombuds work, this book is a welcome addition to the literature. For me, it is now part of a triumvirate of essential ombuds reading, along with my prevailing ‘go to’ sources of Conducting Administrative, Oversight & Ombudsman Investigations by Gareth Jones and The Ombudsman Enterprise and Administrative Justice by Buck, Kirkham and Thompson.
This book has a Foreword from Carrie Menkel-Meadow – true endorsement indeed – who acknowledges that it is an important book and says that “The findings of this superb research project have enormous implications for how we are currently reimagining how dispute resolution and legal redress may be achieved.”
And it is the case that this book packs a vast amount of information, opinion and comment into its 192 pages. There is an introductory Chapter on Ombudsmen and Informal Justice, with the substance of the book being divided into three sections: Part 1 Setting the Scene, Part II Empirical Discoveries and Part III The Future of Informal Justice Systems. There is also an excellent and very useful Bibliography.
I did struggle a bit with the book’s premise that ombuds and ADR are one and the same. Yes, ombuds are an alternative to the courts. But I think that public-sector ombuds, with their focus on administrative justice and use of inquisitorial investigation to reach decisions which often have a public interest, are a distinct form of dispute resolution. I am more accepting of the ADR premise for ombuds whose aim is to resolve complaints to the satisfaction of the parties – although I acknowledge, as is said a few times in the book, that the public/private ombuds divide is increasingly blurry.
And a minor quibble is that the book has a narrower focus than the title suggests. However, at the outset Naomi Creutzfeldt does explain that her book sets out to answer two main questions: what explains users’ perceptions of fairness and trust in ombudsman institutions; and how cultural frameworks influence citizens’ use of ombudsmen. So, in essence, this book explores how ordinary people experience informal justice.
‘In essence, this book explores how ordinary people experience informal justice’
There is a fascinating research ‘puzzle’ described on page 55 relating to the annual reports of ombuds stating clearly that the outcome a person receives from their case determines their overall experience with the ADR provider. The puzzle here is that this appears to contradict the well-regarded and accepted findings of Tyler and others relating to procedural justice. Creutzfeldt goes on to explore this puzzle by combining an analysis of the rapidly developing literature on procedural justice and legal consciousness with the empirical findings from her study of Ombudsmen in the UK and Germany. This study is engrossing. It looks at national patterns and cross-national comparisons of private ombuds in the UK and Germany, and at the public/private divide in the UK by looking at a sample of ombuds from each sector.
Findings include that German and UK complainants have different complaint motivations – with the former being more focused on getting back their money/what was lawfully theirs, and the latter being more concerned about changing the business process and stopping the same problem from happening to others. And that German respondents to the survey were more likely to accept a decision if the outcome was partially or not in their favour.
‘German and UK complainants have different complaint motivations – with the former being more focused on getting back their money/what was lawfully theirs, and the latter being more concerned about changing the business process and stopping the same problem from happening to others.’
When considering private and public ombuds in the UK, the study finds that those who have used a private-sector ombuds appear to trust it more, are more convinced that the ombuds is acting lawfully, have more confidence in the ombuds and feel a moral obligation to follow the decision. Creutzfeldt relates these findings to the different attitudes to law and ADR in Germany and the UK, with UK ombuds providing a less formal and less legalistic process than their German counterparts. She writes well and convincingly about legal socialisation, but I question to what extent people actually choose their preferred way of dispute resolution. Often, in the UK at least, people have no real choice as complaints processes – at least in the public sector – lead inexorably to an ombuds.
In the final Chapter (9 Conclusion: Paths for Theory and Research) Creutzfeldt describes how throughout the book she has developed an argument that “our consciousness around ‘alternatives’ to formal legality is rooted in our national legal socialisation and lived (and constantly redefined) through our legal consciousness”. She also suggests that our expectations about ADR are guided by our pre-existing attitudes towards the formal system. It would be illuminating to explore these expectations both before and after the use of an ADR process, to see whether they are altered or reinforced. The book ends with reflections on the future development of ADR in Europe around three related areas: Ombudsmen and ADR Design, vulnerable consumers and the challenges of the digital.
I think this book will be of interest to researchers, students and practitioners who work for or have an interest in ombuds. I found Chapter 2, with its concise and informative summary of Europe’s Justice Systems, to be of particular value, although as an adopted Scot I would have liked to have seen a bit more about our own system of justice. I also welcomed the clarity and explanation around what ombuds are and do, and in Chapter 6 there is a useful identification and description of the normative roles that people expect of ombuds (these being the roles of Interpreter, Advocate, Ally and Instrument).
If you would like to read a different review of this book, then my esteemed colleague Nick O’Brien has one published on the UKAJI website. We are thinking about starting an Administrative Justice Book Club.
And a remaining puzzle for me relates to the book cover image – what appears to be an old, battered and apparently empty suitcase. What does this signify? Answers on a postcard.
Naomi Creutzfeldt, Ombudsmen and ADR: A Comparative Study of Informal Justice in Europe (Palgrave Macmillan, 2018).
About the author:
Carolyn Hirst is an Independent Dispute Resolver and Housing Mediation Project Worker, University of Strathclyde.
A recent research report highlights the impact that complaints have on public-sector employees and their well-being. The researchers, from Queen Margaret University and the University of Glasgow, worked with the Scottish Public Services Ombudsman to design the research. Here, one of the report’s co-authors (and co-researcher on the Informal Resolution by Ombuds project) describes the key findings and the discussion held at a related conference on how to support individuals who are subject to complaints.
Note: This article was originally posted by Carolyn Hirst on LinkedIn on 19 December 2017 at: https://www.linkedin.com/pulse/research-report-how-do-complaints-affect-those-complained-hirst
By Carolyn Hirst
I am delighted to have had the opportunity to work with Dr Chris Gill, University of Glasgow, Dr Maria Sapouna, University of West of Scotland and Jane Williams, Queen Margaret University on this empirical investigation into the effects of complaints on public service employees. We also worked closely with the Scottish Public Services Ombudsman who advised us on the research design and helped us to secure access to respondents.
The Executive Summary of our Research Report is set out below:
This report presents the findings of a mixed methods research project investigating the effects of complaints on local authority planning staff and housing association staff in Scotland. The research included an online survey of 132 individuals who had been subject to a complaint and follow-up qualitative interviews with 16 people who had responded to the survey.
The key finding of the research was that being complained about affects the health and well-being of employees, their work practice, and the way they perceive service users. 71% reported their work practice was negatively affected by a complaint, 67.2% reported their health and well-being was affected, and 61.2% reported their attitude to service users being affected.
For most, the effects were moderate and respondents were most likely to say they had been “somewhat” affected: 56.5% in relation to their work practice, 51.6% in relation to their health and well-being, and 52% in relation to their attitude to service users. In relation to each issue, a significant minority reported being affected “a great deal” by a complaint: 14.5% in relation to their work practice, 15.6% in relation to their health and well-being, and 9.4% in relation to their attitude to service users.
Of those who reported that their attitude to service users had been negatively affected by the complaint, the three most common effects were being more cautious in dealing with certain types of service users (66.7%), being more cautious and distrustful towards service users generally (29.8%), and leaving certain service users to be dealt with by colleagues (12%).
This overall picture was explored further in qualitative interviews. These interviews provided a range of insights about the kinds of effects people experienced when complained about and the factors that seemed important in determining whether they would experience a negative impact.
The types of effects commonly reported by respondents included emotional trauma and loss of selfconfidence. Experience was seen as important in moderating the effect of complaints, with more experienced employees developing a ‘thick skin’ over time. Interestingly, attitudes to learning from complaints remained generally positive even where people had negative personal experiences of having been complained about.
Factors that made it more likely that a complaint would have an effect on staff included: perceiving the complaint as personal (rather than about service or the organisation); perceiving the complaint as an attack on the individual’s professional identity; and perceiving the complainant’s motivation as vexatious or unreasonable. Context was also important, with planning staff more likely to be affected than housing staff.
The operation of the complaint process was particularly important in terms of whether staff were likely to feel a complaint had affected them negatively.
Overall, views of the complaint process were fairly positive, but those who reported being negatively affected by a complaint were more likely to have a negative view of the fairness of the complaint process.
In terms of the support that respondents felt would help mitigate the negative effects of being complained about, some felt that complaints were simply ‘part of the job’ and that support was generally not required except for junior staff. Others highlighted developing an open culture around complaints, managerial support, peer support, and a fair complaint process, as means through which the impact of complaints could be reduced.
Our full Report can be accessed at:
And we presented our research findings at a conference organised by the Scottish Public Services Ombudsman, Queen Margaret University and the University of Glasgow which took place on Tuesday 5 December 2017. This conference explored how best to support public service employees who have been subject to a complaint. A note of the sessions at this conference can be found at: