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.
By Dr Nick O’Brien In December 2016, the Cabinet Office published the draft Public Service Ombudsman Bill, setting out its proposals for bringing together the responsibilities of the current Parliamentary and Health Service Ombudsman and the Local Government Ombudsman to create a new organisation with strengthened governance and accountability for complaints about public services in England. This review explores what research has been […]
The full research review is available to download at the link above and for viewing below.
Nick O’Brien is Honorary Research Fellow, Liverpool University, and the co-author, with Mary Seneviratne, of Ombudsmen at the Crossroads (Palgrave McMillan, 2017).
This research review, by Dr Nick O’Brien, was commissioned by the UK Administrative Justice Institute and published in January 2018 to inform debate about reform of public-sector ombuds in the UK. Below is a brief overview of the context, including developments in relation to draft legislation.
Consolidation of the public service ombudsman landscape in England has been a long time in the making, with the Collcutt Report calling for reform in 2000. However, on 5 December 2016, the Cabinet Office finally published the draft Public Service Ombudsman Bill, setting out its proposals for bringing together the responsibilities of the current Parliamentary and Health Service Ombudsman (PHSO) and the Local Government and Social Care Ombudsman (LGSCO) to create a new organisation with strengthened governance and accountability for complaints about public services in England and the UK reserved to Westminster.
The Bill has had a long gestation. In 2011 the Law Commission issued a report making a number of recommendations for reform in the landscape of the public services ombudsman. In 2014 the Public Administration Select Committee published their report Time for a People’s Ombudsman. Robert Gordon QC subsequently carried out a review, followed by a public consultation in spring of 2015, the government’s response one year ago, and then the draft Bill in December 2016. The Bill did not appear in the May 2017 Queen’s Speech, however, suggesting that there will be a delay in implementing any reforms to the landscape.
In the meantime ombudsman reform has been taken forward by the devolved administrations, with the new powers and approaches taken by the public services ombudsman in Scotland, Wales and Northern Ireland, providing evidence on best practice in the 21st century.
The pause in taking forward the draft Bill provides an opportunity for researchers, legal practitioners, policy makers, parliamentarians, ombudsman, and others to exchange views on the strengths and weaknesses of the current proposals in the Bill, what aspects of change are most pressing and how change might be achieved without legislation.
Further information and background reading
- The House of Commons Library issued a research briefing paper on the draft PSO Bill in January 2017. This sets out the main provisions proposed in the Bill and notes shortcomings identified by individuals and organisations.
- During January and February 2017, UKAJI published a series of blog posts on the draft Bill, from a range of contributors and perspectives. The initial post, by Richard Kirkham and Brian Thompson, asked whether the changes in the draft legislation constitute significant reform. In the second post of the series, Gavin McBurnie compared the recommendations for reform made by the UK Parliament and the PHSO with the proposals in the draft Bill. In the third post of the series, Della Reynolds of phsothefacts explored the draft Bill from a user’s perspective and expressed disappointment at the missed opportunity to bring in real and substantive change for users. In the fourth and final post in the series, Nick O’Brien explored whether the draft Bill’s focus on a consumerist model suggests that, in England, the ‘ombudsman enterprise’ has run out of steam.
- On 6 March 2017, the Communities and Local Government Select Committee held a one-off evidence session on the draft PSO Bill with Mick King, Local Government Ombudsman, and Denise Fowler, former Housing Ombudsman.
- In July 2017, the PHSO and LGO issued a joint response to the draft Bill. In this they highlighted areas where they believe the reforms could go further and the new Public Services Ombudsman’s role could be strengthened.
- In October 2017, UKAJI and the University of Glasgow published research on the Complaints Standards Authority role of the Scottish Public Services Ombudsman, which involves designing model complaint handling procedures (model CHPs), monitoring the operation of those procedures (including setting data reporting requirements), and supporting the development of good practice in complaint handling.
- In January 2018, UKAJI published the review undertaken by Nick O’Brien on what research has been carried out on public sector ombudsman in the UK to identify what we know and don’t know.
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:
Say what you mean, mean what you say: New research highlights challenges in the language used by ombudsPosted: November 19, 2017
A new report has been published on research on language used in complaints handling. The Language of Complaints, produced by IFF Research, was commissioned by the Legal Ombudsman to help understand how language affects consumers’ behaviour and choices and identify better practice in the use of language. The report highlights the use of jargon in complaints responses – including ‘remedy’, ‘premature’ and ‘out of time’ – which can cause confusion or appear meaningless and add to ‘the accumulation of technical language that the customer will have encountered in their complaint “journey”.’
The researchers explored the impact of language used in both written and oral communication by legal services providers and the Legal Ombudsman. They consulted with staff at the Legal Ombudsman and also carried out 15 face-to-face interviews and four focus groups with members of the public, both those whose complaint to the Ombudsman had concluded and those who had used a legal services provider but not complained.
Responses suggested that, generally, communications were clear and straightforward and that the Legal Ombudsman’s language is an improvement on that used by legal services providers. There were a number of areas, however, in both written and oral communications where improvements could be made.
Interpretations of commonly used phrases
Although it is clear that people interpret language in a variety of ways, it is useful to understand better how common phrases used by redress mechanisms can convey the opposite of what is intended. For example:
‘The phrase “we will look at the facts in each case” was felt to convey the Ombudsman’s impartial approach particularly well, while the idea of the Ombudsman “weighing up the comments” from the customer and the service provider meant that several non-customers interpreted the Ombudsman’s role as being like a pair of scales.’
Other comments include that the term ‘impartiality’ implies ‘sitting on the fence’ and being toothless to enforce recommendations, and that ‘premature’ (used in relation to a complaint that has not yet gone through the internal complaints procedure of the provider) is associated ‘with small babies or with a sexual context’.
Lack of clarity on ‘informal’ resolution
It is interesting to note that among the problematic language identified is ‘informal resolution’: the research identified that the steps involved in taking a complaint to an ombud are not as clear as they could be, and that for some interviewees:
‘…the word “informal” is jarring: taking their complaint to the Legal Ombudsman feels like a formal process to them, so implying that their complaint is informal feels to some as thought their complaint is being downplayed and that its importance is devalued by the term.’
The report explains the process of ‘informal resolution’ as follows:
‘Once a complaint has been accepted, it will be passed to an investigator who will listen to both sides, look at the facts, weigh up the evidence and take a view. If a case is resolved at this stage, it is resolved ‘informally’. The Legal Ombudsman aims to resolve complaints this way; currently, approximately 30% of cases are resolved like this.’
More insights on the language used around informal resolution suggest the need for more clarity about the process used in this informal stage, something we highlighted in our report on informal resolution approaches used by ombuds.
‘…several of the calls were felt to be overwhelming and hard to understand. This was due, in large part, to their lack of structure which felt baffling to the customer: for example, the informal resolution with remedy call started with the staff delivering a decision, when later it became apparent that this was actually a first offer (“It began as a decision, then it became a bartering thing.”)’.
‘…there was a lack of clarity among participants about the different stages of the process, and, in particular, what the difference between a “preliminary” and “provisional” decision means in practise. Few customers were certain whether they had received one or both (with one or two believing that the preliminary decision was when the Legal Ombudsman assesses your case and decides to take it on, and one or two others believing that the preliminary decision they had received from an investigator on their case was in fact a ‘final decision’).’
The researchers quote a complainant whose complaint was not upheld, describing the informal process as ‘quick and dirty’:
‘A first round, they would have looked at a quick and dirty response that says, “Sorry, here’s £200, go away”.’
Remedy terms and job titles
In terms of redress, ombuds often use the term ‘remedy’, but this was seen by some interviewees as ‘medicinal’, as if a dose of remedy would fix the problem. These interviewees argued that, where a financial remedy is being recommended, ‘compensation’, ‘cash settlement’ or simply ‘settlement’ would be more appropriate.
Job titles within ombud organisations were also potentially challenging in that, although they appeared to confer a welcome right to escalate a complaint (from, for example, investigator to senior investigator to Ombudsman), it also felt to some like scaling a great height, and in doing so it implied that the investigator’s opinion is less valuable.
The findings give valuable insights into the perspectives of users of redress mechanisms, including but not limited to ombuds. They also give pause for thought for anyone involved in the design of grievance and complaint procedures.
New research: Kafkaesque and demoralising: how online critics perceive the UK’s public service ombuds — UKAJIPosted: September 27, 2017
This post gives an overview of a recent study of ‘ombuds watchers’ and their online criticism of the public service ombud schemes, including the PHSO, LGO and SPSO. The researchers, Chris Gill (University of Glasgow) and Naomi Creutzfeldt (University of Westminster), have published a paper about the research: ‘The ‘Ombuds Watchers’: Collective Dissent and Legal […]
Being ‘ombidextrous’: revisiting questions from our mapping study of the use of informal resolution approaches by ombudsPosted: May 21, 2017
In advance of the next biannual conference of the Ombudsman Association (on 25-26 May 2017, at Loughborough University), we thought it would be worth republishing our conclusions from our mapping study of informal resolution approaches used by ombuds. We conducted this mapping research in 2014, and no doubt practices and approaches have moved on since then for many of the organisations in our study. The issues, however, remain as pertinent as ever, and as unresolved.
By Varda Bondy, Margaret Doyle and Carolyn Hirst
Conclusions and discussion points
Ombuds are themselves a type of informal resolution mechanism when seen in the context of ADR, being alternatives to judicial determination in court or tribunals, as pointed out by several of those responding to the survey. This study explored the informal processes that make up part of the overall ombud complaint-handling work. These are primarily the processes that do not involve investigation, adjudication and determination, the ombud’s traditional role. For some respondents this presented some confusion, used as they are to describing their overall process and approach as ‘informal’.
This was a scoping project designed to produce a descriptive mapping study, identifying the schemes that use informal resolution and those that do not, the reasons for doing so and the nature of those processes. Where possible, figures are provided in respect of various aspects of practice, but these need to be read as illustrative of models and trends rather than as a definitive representation of each individual scheme; even during the relatively short duration of the project in the first half of 2014 there were changes in the membership of the Ombudsman Association, new annual reports were published, and some schemes were in the process of changing their informal resolution processes.
The focus of this report is naturally on the 36 of 48 participating schemes that use some form of informal process, but in order to understand the nature of this aspect, it is necessary also to investigate the schemes that do not. In respect of some such schemes, for example those of a regulatory nature, it may appear obvious at first blush that informal resolution is inappropriate. Yet bodies of similar functions presented a variety of different approaches.
The main themes to emerge from this survey are:
It is apparent that some of the common terms used by ombuds mean different things, and conversely, similar terms are used to describe quite different processes. For example, does ‘mediation’ mean a full process conducted by a qualified mediator, or a settlement brokered by way of shuttle negotiations by a case officer on the basis of their assessment of what is a fair or expedient outcome? We came across both of these understandings of mediation.
We also found that mediation was not necessarily synonymous with early or even informal resolution. In at least one scheme, mediation takes place only after an investigation has been carried out and the complaint upheld. Similarly, one scheme refers to ‘conciliation’ as the informal part of the process, whereas another describes it as a formal process.
Does terminology matter? We think it does. The proliferation of terminology, at times contradictory, can be confusing for complainants as well as to complaint handlers as the terms used can also impact on how they exercise their function.
It is possible that consistent use of dispute resolution terms can lead to better matching of complaint to process, resulting in better outcomes – a point made by the National Alternative Dispute Resolution Advisory Council of Australia (NADRAC). NADRAC also suggests that common terminology contributes to consistent and comparable standards and provides a basis for programme development, data collection and evaluation. Carrying out any comparative analysis of ombuds and complaint handlers is difficult when, as we have found, they each report using different terminology and different understandings of the same terms.
What principles guide investigators in deciding whether to use informal resolution? What criteria, if any, are applied? We established that only a minority of schemes have some form of written criteria setting out when informal resolution can be used, and of these, only three are published and available in the public domain. Guidelines adopted informally by schemes include numerous references to case handlers’ judgements based on experience or knowledge, but little of what might be considered criteria.
On the whole, it appears that this is often a matter for individual caseworkers to decide. Is it a matter of, as one former ombud has said, ‘Like the elephant or the rhinoceros, you know one when you see one.’?
In addition to the difficulties of navigating the terminology applied, arriving at a common understanding of the machinations of specific process terms (mediation, conciliation, etc.) proved problematic. In other words, it was hard to tell what happens in practice. We believe that the majority of schemes employ shuttle negotiations by telephone and in writing, but only a handful of participants described the process in detail.
Publication of outcomes
Transparency and accountability are principles that all ombuds subscribe to. Indeed, the vast majority of schemes publish annual reports containing a variety of aspects of their work. Invariably, these include figures about the volume of complaints received and how they are addressed and concluded. However, there are nearly as many ways of presenting those (and other) facts as there are schemes, with the result that meaningful comparisons are almost impossible.
Discussion points and further research
This report is intended to raise questions for discussion and to identify areas for further research. Below are key discussion points arising from the study, as well as suggestions for issues arising from the study that require further research.
Describing, not defining
Should we move away from the problems of terminology and instead of defining the processes used by ombudsmen and other complaint handlers, should we attempt to describe them? This is the approach of the NADRAC and of the EU ADR Directive. Both identify three types of ADR process: for NADRAC, these are advisory, facilitative, and determinative; for the ADR Directive, they are advisory, proposing, and imposing. Into these three fall the specific ADR process terms such as mediation, conciliation, early neutral evaluation, adjudication, arbitration, etc.
It may well be, as NADRAC believes, that it is impossible, and indeed inappropriate, to prescribe how such descriptions should be used by ADR providers. However, it seems sensible to require at the very least (and NADRAC supports this) that ‘descriptions of the actual process used by any provider should be available in forms that are easily understood by the users of the service’.
In 2010, the Office of Fair Trading, in a summary guide to dispute resolution systems for consumer redress in the United Kingdom, stated that:
‘A useful distinction can be drawn between procedures in which a neutral third party proposes or makes a decision (ombudsmen, adjudicators, arbitrators) and those where the neutral party seeks to bring the parties together and assist them in finding an agreement by common consent (conciliation, mediation). Which of the above procedures is most appropriate will depend on the nature of the dispute to be resolved.’
Such a distinction suggests a binary framework – the procedure is either one in which a decision is proposed or imposed by the scheme or one in which the parties reach an agreement by consent. It is a familiar framework. Applying it to ombud procedures, however, presents some difficulties as it does not reflect the actual practice of most ombuds, most of whom appear to be practising what the Administrative Justice and Tribunals Council, in its 2012 report ‘Putting It Right’, defined as
‘an independent person assessing the claims made by each side and giving an opinion on a) the likely outcome in court or tribunal [or, it could be added, likely ombudsman decision], b) a fair outcome, and/or c) a technical legal point. It is non-binding, and the parties decide how to use the opinion.’
Consensual agreements are different in an ombud context than they are in other areas, such as civil mediation generally. In this context, consensual agreements are not only of interest to the parties involved in the complaint, but potentially have wider significance. They are not made in a vacuum but in the ‘shadow’ of the ombud’s authority.
Ombuds have a place in the wider ADR sphere, but perhaps as an ADR process in itself (‘ombudsing’?) alongside mediation, conciliation, arbitration, etc. Unless we understand a process of ‘ombudsing’ as a distinct and defined process to sit alongside mediation and arbitration, for example, we have a confusing lack of clarity about what it is that ombuds are actually offering process-wise. What is missing, and appears to be needed, is a classification of the processes used by ombuds and their complaint-handling cousins.
Suggested framework of processes used by ombuds
In 2011 the Law Commission identified three ways in which ombuds dispose of complaints: ADR, investigation and report, and dismissal. The latter ties in with one of the ‘resolution’ methods identified by some respondents to our mapping survey: rejection of the complaint. However, for the Law Commission ‘ADR’ included, in the majority of cases, the ombud informing the public body of the complaint made and encouraging the public body to resolve the matter. This might be described as a ‘referral back’.
In our mapping survey, we have identified a further ‘resolution’ process used by ombuds and complaint-handlers: advice to the complainant, possibly including signposting to another organisation.
It is possible to set out, in the ombud context, a spectrum of ‘resolution responses’ being used:
- referral back
- advice and signposting
- bringing the parties together to facilitate an agreement by consent
- hearing from the parties and proposing a solution
- investigating and making (imposing?) a determination
Given the important role that ombuds have in improving service provision and complaint handling by the bodies they investigate, one could add, on the top and bottom of the above list, prevention and lesson learning.
But once a complaint has been accepted and is being looked at by the scheme, what are the key processes used to ‘resolve’ them? They appear to fall under the three broad headings in the final bullet points of the list above:
- bringing the parties together (process) to facilitate an agreement by consent (outcome)
- hearing from the parties and negotiating (process) and proposing a solution (outcome)
- investigating (process) and making, or imposing, a decision (outcome)
This echoes both the NADRAC descriptions and those in the EU ADR Directive.
Training and skill set required
A question for ombuds and complaint-handling schemes is whether caseworkers have the appropriate skills needed if they want to increase the number of complaints resolved through informal processes and improve the quality of the process. The use of quicker and less formal methods of complaint determination, in addition to the more traditional method of adjudication, is broadening the skills set that complaint handlers need to possess. And different skill sets need to be valued by the organisation as a whole:
‘Getting our managers to think more about coaching and shifting that behaviour away from the legalistic kind of checking… and that has an impact on our board as well because it means that our board would need to recognise behaviours that normally they don’t see… the organisation would… in the past… probably value people with that… legalistic bent whereas in the future the real value comes from people who are good at talking and fixing things and that’s quite a change.”’
What skill set is needed for a resolution focus, and is it different from that needed for investigation and determination? If so, what specific training might be needed to ensure a consistent approach to informal resolution?
Is it desirable, and possible, to develop agreed best practice (in process, training, data recording)?
An earlier study of ombuds’ use of ADR concluded with a number of suggested principles – including clarity about the processes, transparency about the criteria for using different processes, and informed consent by the parties – and suggested actions, including staff training and assessment and evaluation of outcomes achieved through informal resolution processes. Is it time to revive interest in the development of best practice guidance?
Is informal resolution a necessary form of filtering in an age of austerity?
To some extent, is informal resolution is a form of ‘filtering’ – identified in a recent report as ‘a major part of the work of complaint handlers’? Filtering can involve any or all of the functions of resolving, signposting (directing a complaint to an alternative appropriate route of redress) and rejecting.
Is informal resolution a sign of failure?
Two schemes that have a low rate of informal resolution, and one scheme that is said not to be using informal resolution at all, told us that a low rate reflects good complaint handling practice on part of body complained against. Conversely, a high rate of informal resolution by ombuds suggests a failure in the system, in that complaints capable of being resolved informally should be resolved at an earlier stage. Is this an indication of a mood change among ombuds in their attitude to informal resolution?
Does greater use of informal resolution pose a threat to ‘justice’?
Can it be said that the methods of informal resolution of complaints provide the information that ombuds need in order to fulfil their role in promoting service standards, first-tier decision-making and good administration? And for ombuds dealing with private-sector providers and services, does informal resolution put them at risk of being assembly lines of mass case processing, a sort of ‘Complaints ‘R Us’?
This mapping study has shined a light on the informal processes used by ombuds and other complaint handlers in the UK and Ireland. It is a limited light, and there is more to learn and study.
First, we have noted that many organisations with a significant role in complaints handling – whether as part of administrative justice or consumer redress – were not included in this mapping survey. Broadening out the mapping work to include these other relevant organisations would be helpful.
Although we have focused on the ombuds community, we are sensitive to the overlaps between ombuds and other routes to redress for complainants. There is much opportunity to share learning between courts, tribunals and ombuds, for example. It would be useful to explore the extent to which ombudsmen might adopt the ‘mapping’ factors for identifying the appropriate dispute resolution route for tribunal claims.
Specific aspects covered in this research require closer examination, including:
Process: There is a need for in-depth research on how the process actually works and to identify the appropriate realistic methodology for studying the journey of a complaint from initial acceptance, through resolution and outcome.
Outcomes: How is ‘success’ defined in informal resolution context? We have examined the use of informal resolution, but its success is an area for further exploration. There is also a need to examine the views held by users of ombud services (both complainants and those in the departments and organisations that are the subject of complaints).
Criteria: For many schemes, informal resolution appears to be the default approach to complaint handling, with a move to investigation if the complaint did not resolve at this stage of the process or if there was some reason to investigate. On reflection, a more informative and potentially productive question to have asked in our survey would been ‘What are your criteria for deciding whether or not a complaint needs to be investigated?’
Timescales/speed: This survey did not ask specifically about timescales of informal resolution processes, but what we were told was intriguing and worth further study. Only a handful schemes told us they have a timescale (time limit) for attempts to informally resolve a complaint (ranging from one hour to one day mediations, to ten working days).
Classification of disputes
One further question arising is whether some processes are more suitable for some types of complaint, and whether there is scope to developing classifications that can be used across the range of schemes. There is also a need to explore whether the same category of complaint is dealt with differently by ombuds in different jurisdictions. Such classification could help in developing guidance on what disputes and complaints, and in what circumstances, are best suited to particular resolution approaches.
In the ombud context this differs from guidance on the suitability of mediation and other forms of ADR because ombuds have a wider, authoritative role. They are not simply dispute resolvers but have the additional (and some would say more important) responsibility to influence good practice by bodies in jurisdiction. They do this through their determinations as well as through their ‘good offices’ – persuasion, guidance, and feedback.
The classification of disputes may be needed in order to identify a comprehensive approach for influencing how cases should be allocated to a route to redress – what forum for which fuss. This might involve categories of complaints – e.g. fundamental rights cases, in which adjudication is necessary, and, at the other extreme, ‘cases where the claimed entitlements could not themselves satisfy the claimants and where the interests of all parties might be better served by a negotiated resolution’. Endorsing the view that a proportionate and appropriate system must involve a range of dispute resolution techniques, the AJTC identified a number of principles and mapping factors to help identify the suitability of a specific dispute resolution process, such as early neutral evaluation, mediation, and traditional hearing.
These are only some of the aspects considered in this report. Our aim has been to present a nuanced snapshot of the ethos and practices of informal resolution by ombuds at the time of conducting the research. We hope this will further the understanding of current issues and research needs in this field, and lead to greater consistency in the use of terminology and processes in future.
 This is the final section of our report ‘The use of informal resolution approaches by ombudsmen in the UK and Ireland: A mapping study’, which was funded by the Nuffield Foundation and supported by the University of Essex and De Montfort University. We have republished it here unchanged aside from replacing ‘ombudsman/men’ with ‘ombud/s’ when used in a generic sense.
 National Alternative Dispute Resolution Advisory Council (2003) ‘Dispute resolution terms: The use of terms in (alternative) dispute resolution’ (Canberra: National Alternative Dispute Resolution Advisory Council): 1.
 Jefferies, R (2001) “A review of mediation”, The Ombudsman, Issue 15 (March).
 See, for example, National Alternative Dispute Resolution Advisory Council (2000) ‘The development of standards for ADR: Discussion paper’ (Canberra: Legislative Services, Commonwealth of Australia): 6.
 National Alternative Dispute Resolution Advisory Council (2000).
 Office of Fair Trading (2010), ‘Mapping UK consumer redress: A summary guide to dispute resolution systems’, OFT1267 (May).
 Gill, C, Williams, J, Brennan, C and O’Brien, N (2013) ‘The future of ombudsman schemes: drivers for change and strategic responses’, a report for the Legal Ombudsman (Edinburgh: Queen Margaret University).
 Doyle, M (2003) ‘The use of ADR in ombudsman processes: Results of a survey of members of the British and Irish Ombudsman Association’, (London: Advice Services Alliance).
 Bondy, V and Le Sueur, A (2012) ‘Designing redress: a study about grievances against public bodies’ (London: Public Law Project): 55.
 Administrative Justice and Tribunals Council (2012) ‘Putting it right – A strategic approach to resolving administrative disputes’ (London: AJTC): 36–37.
 Richardson, G and Genn, H (2007) ‘Tribunals in transition: Resolution or adjudication?’ Public Law 2007, pp.116-141: 141.
 Administrative Justice and Tribunals Council (2012) ‘Putting it right – A strategic approach to resolving administrative disputes’ (London: AJTC).
About the authors:
Varda Bondy, Margaret Doyle and Carolyn Hirst are the co-authors of ‘The use of informal resolution approaches by ombudsmen in the UK and Ireland: A mapping study’, which was funded by the Nuffield Foundation. More information about the project and the team is available at http://www.ombudsresearch.org.uk, where there is also a blog covering aspects of research on ombuds and complaint handlers.