Being ‘ombidextrous’: revisiting questions from our mapping study of the use of informal resolution approaches by ombuds

Posted: May 21, 2017 | Author: | Filed under: EU ADR Directive, harmonisation, informal resolution, mediation, Nuffield Foundation, ombuds, research, terminology | Tags: , , , , | Leave a comment
DrawingHands

MC Escher, Drawing Hands (Image source: Wikipedia)

 

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[1] 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.

Main themes

The main themes to emerge from this survey are:

Terminology

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.[2] 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.

Criteria

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.’?[3]

Process

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[4] 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’.[5]

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.’[6]

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[7] 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:

  • rejection
  • 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.”’[8]

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[9] 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’?[10] 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’?

Future research

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.[11]

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’.[12] 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.[13]

Finally

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.

 

[1] 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.

[2] 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.

[3] Jefferies, R (2001) “A review of mediation”, The Ombudsman, Issue 15 (March).

[4] 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.

[5] National Alternative Dispute Resolution Advisory Council (2000).

[6] Office of Fair Trading (2010), ‘Mapping UK consumer redress: A summary guide to dispute resolution systems’, OFT1267 (May).

[7] Law Commission (2011) ‘Public Services Ombudsmen’, Law Com No 329, HC 1136 (London: The Stationery Office).

[8] 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).

[9] 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).

[10] Bondy, V and Le Sueur, A (2012) ‘Designing redress: a study about grievances against public bodies’ (London: Public Law Project): 55.

[11] Administrative Justice and Tribunals Council (2012) ‘Putting it right – A strategic approach to resolving administrative disputes’ (London: AJTC): 36–37.

[12] Richardson, G and Genn, H (2007) ‘Tribunals in transition: Resolution or adjudication?’ Public Law 2007, pp.116-141: 141.

[13] 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.

What research exists on complainants’ views of ombuds, and how can we learn more?

Posted: October 29, 2015 | Author: | Filed under: customer satisfaction, ombuds, research, users' views | Tags: , , , | 3 Comments

We often hear about the ‘user journey’ and putting users at the heart of the justice system. For ombud schemes, ‘users’ are both complainants and the complained about, and generally feedback is sought from both groups. It is complainants, however, who tend to be the most vocal about their dissatisfaction with their experience of ombuds – using Twitter and other social media to voice their concerns. (Complained-about organisations, such as those subject to the Financial Ombudsman Service and Legal Ombudsman, are also vocal but tend to use other mechanisms and channels.)

But what do we really know about complainants’ views? Most ombuds carry out customer satisfaction surveys to gain insight into how people feel about the process used to handle their complaint and the outcome achieved. Most also have processes for reviewing complaints about the service provided, and a few have a mechanism to review ombud decision when these are challenged. Much of that work remains in the shadows and little is in the public domain, making it difficult to analyse how these numbers reflect the experience of complainants overall and to ascertain the extent to which service complaints and challenges to decisions actually make a difference.

What does the research tell us?

There is little research on the systemic impact of customer satisfaction and service complaints. In Benchmarking the Legal Ombudsman, the Legal Services Consumer Panel compared the Legal Ombudsman with several other UK ombuds schemes using a series of indicators grouped under four headings: caseload, timeliness, quality and cost. In its section on quality, the Panel highlighted that although some ombud schemes publish customer survey results in full, the practice of most is to include only a selection of statistics in annual reports. That benchmarking survey also suggested that a mechanism for externally reviewing service complaints can have a positive impact on improving the quality of investigations, but this was anecdotal.

A very different type of study of complainants’ experience is the 2008 research by Sharon Gilad on case handlers in the Financial Ombudsman Services. Gilad explored the issue of complainant expectations from the case-handler perspective – enquiring what complaint handlers do, what they try to achieve, and what strategies they employ. She suggests that by enhancing complainants’ trust in, and satisfaction with, unfavourable decisions, an expectations management approach may reinforce rather than reduce the inclination to complain in future.

…rather than merely “cooling out” complainants, this form of legitimization may actually enhance citizen-consumer voice… Rather than provoking them to pursue their dissatisfactions further in the public sphere, off-putting bureaucratic encounters resulted in applicants’ apathy and withdrawal.

Gilad’s analysis suggests that complaint handlers perceived communicating adverse decisions to complainants in a sensitive and persuasive manner as one of the key challenges of their role. When complaint handlers and complainants had differing assessments of complaints, the complaint handlers focused on managing expectations – specifically managing what they perceived as the public’s excessive or unrealistic expectations from financial firms and the ombudsman.

In November last year, the Patients Association published a report on complainants’ dissatisfaction with the Health Service Ombudsman. The ‘People’s’ Ombudsman: How it failed us sets out what the Association perceives as major failings in the way the ombud works. Key among its findings are criticisms of the ombud’s approach to evidence and the overall poor quality of its decision making. It argues that investigations are not diligent, robust or thorough, evidence is ignored, and mistakes are made, leading to re-investigations.

‘We offered to send them the set of medical records we had so that the Review team could compare them with their own. The Review Team said this was not necessary as they would ‘only be looking at the complaint handling’ and not at the original complaint.’

The report’s case-study evidence is powerful but is limited; it’s unclear how indicative the experiences reported on are of wider experiences or what the scale of the problem is.

How to approach research on complainants?

So how can we get a better sense of what complainants themselves think of ombuds? Getting access to individuals and to real cases is not an easy task for researchers – confidentiality, data protection, and ethical issues are all potential obstacles.

This week the UK Administrative Justice Institute published two blog posts about the issue, from different perspectives. One is from Della Reynolds, the co-ordinator of the PHSO Pressure Group, which works with complainants who are dissatisfied with the Health Service Ombudsman. The other is from an academic researcher at University of Oxford, Naomi Creutzfeldt, who has been exploring the issue of complainants’ trust in ombuds across the EU.

Reynolds lists a number of common obstacles faced by complainants:

  • delay
  • lack of communication
  • secrecy
  • manipulation of the facts
  • factual error
  • staff away on leave regularly or case passed between staff so you start again with new case worker
  • blanket statements from staff which do not address key points raised
  • acceptance of statements made by public body at face value
  • refusal to release details of clinical advisor used – report written by clinical advisor – questions asked of clinical advisor or evidence supplied to clinical advisor
  • no action taken if a service delivery complaint made
  • any complaint made about the decision will be met with suggestion to go to judicial review

She describes the feelings of helplessness and righteous anger that complainants experience when faced with a failure to obtain a remedy from the ombuds. She proposes that a case study approach would provide much-needed insight – following a number of cases from initial complaint to outcome, using questionnaires (and possibly interviews) to get a full picture of the ‘journey’ of the complainant.

‘Like a badly aggrieved child you approach your parent ombudsman with tales of woe and the evidence to prove it, only to be told that it is just your ‘perception’ of injustice.’

Creutzfeldt’s EU-wide project involves surveying complainants who used ombud schemes and has published her findings in country-specific reports. She writes that ‘Despite the significance of ombudsmen to our constitutional and civil justice landscapes, very little is known about users’ perceptions of the fairness of the procedures and practices and the significance of these perceptions for levels of trust in particular ombudsman offices.’

Her comparative study (she has published a number of country-specific reports) included work on five ombud schemes in the UK: two of its public-sector ombudsmen (Local Government Ombudsman and Parliamentary and Health Services Ombudsman) and three private ombudsmen covering five sectors (Legal Ombudsman, Financial Ombudsman Service and Ombudsman Services covering property, energy and telecoms). She has gathered and analysed data on complainants’ views at first contact stage and about the process and outcome, as well as overall satisfaction.

Among her findings is that, in both private-sector and public-sector ombuds, complainants’ expectations are too high from the outset.

‘I believed that they had the “teeth” to resolve what seemed to be a straightforward case of an erroneous transfer which I simply couldn’t resolve however hard I tried.’

She also found a marked difference in levels of dissatisfaction for those using public-sector ombuds: overall 57% of those in public schemes felt the procedure was ‘somewhat unfair’ or ‘very unfair’, compared to a quarter of those in private schemes.

The increased tendency of complainants to use social media as a mechanism to voice their dissatisfaction means that we know more about those who had a poor experience than those who had a positive one. This is an issue to be considered in another research project, currently being conducted by Creutzfeldt with Chris Gill of Queen Margaret University, on dissatisfied complainants who have set up online protest groups to highlight concerns about ombudsman schemes and campaign for change.

Ideas

We would be interested to hear of other research that has been or is being carried out on complainants’ experiences. Please get in touch using the Comments facility on this blog.

‘Manning’ the ombuds barricades

Posted: June 9, 2015 | Author: | Filed under: ombuds, terminology | Tags: , , , , , , , , | 6 Comments

by Varda Bondy and Margaret Doyle

In October 2014, we launched (together with Carolyn Hirst) a mapping study titled ‘The use of informal resolution approaches by ombudsmen in the UK and Ireland ’. We discussed at length whether to use the words ‘ombud/s’ or ‘ombudspersons’ rather than ‘ombudsman/men’, but decided on the latter to avoid the title itself becoming the centre of attention rather than the content of the report.

However, we felt compelled to touch on this question at the launch, which was attended by a number of ombudspeople as well as academics. After presenting one aspect of our findings, concerning the multiplicity of terms used by schemes to describe the same processes and identical terms to describe different ones, we added a closing remark on the problematic matter of terminology in the use of the term ‘ombudsman’ itself. This included an assertion that the word ‘man’ in Swedish means exactly the same as it does in English, and that the argument that the term is gender-neutral therefore does not wash.

That brief remark at the launch attracted responses on Twitter:

‘Term ombudsman dated and needs challenging. Sexist?’

‘I prefer “ombudsperson” to “ombuds” like in America’

‘I prefer ‘ombuds’ but am fine with other terms.’

A much-respected former ombudsperson wrote to us with a series of thoughtful suggestions designed to circumvent the problem. While recognising that the term ombudsman has been ‘de-masculinised elsewhere as in the South African FAIS Ombud and US university Ombuds, it is not making much headway in Europe or the [rest of the] Commonwealth, and… we have to live with the word as it is, not least because it is ‘now included in various statutes’ (emphasis ours).

He suggested the problem is in the plural; referring to a mixed group of men and women as ‘ombudsmen and ombudswomen’ is laborious, and the term ‘ombudsmen’ clearly denotes that the singular ‘man’ part of the word is masculine, as opposed to being an integral part of the combination of sound ‘ombudsman’. His proposed solutions included:

  • Avoid using the generic plural ‘ombudsmen’. ‘Ombudsman should be confined to use either as a non gender specific noun, or as an adjective.’
  • When referring to entities or services, use ‘ombudsman schemes, offices, or services’.
  • When referring to those who lead ombudsman offices, use ‘heads of ombudsman offices’ or ‘ombudsman post-holders’.
  • When referring to individuals who perform ombudsman decision-making functions, in formal speech or writing, use ‘ombudsman decision makers’.
  • When referring to a mixed group of those heading or working in ombudsman schemes, in more informal or light-hearted speech or writing, use terms such as  ‘ombuds-folk’, ‘ombuds-people’ ‘ombuds-workers’ or ‘the ombudsman community’.

We welcome any such engagement, especially where it recognises the problematic nature of the terminology, but we are perplexed as to why the ombuds community is so intent on engaging in both linguistic and conceptual acrobatics by insisting that ‘man’ does not mean ‘man’.

The NI Ombudsperson Bill

At the risk of generating groans of ‘oh not this again’, we feel compelled to take issue with the disappointing stance taken by the Ombudsman Association (OA) Executive Committee in their response to the recent consultation on the proposed Northern Ireland Public Services Ombudsperson (NIPSO) Bill, which, as the title suggests, refers to the office holder throughout as ‘ombudsperson’.

The terminology is not in fact part of the consultation at all, but the OA Executive Committee highlighted its objection to it in its consultation response of 28 May 2015:

“The Association shares concerns expressed by others that using the title ‘ombudsperson’ will cause confusion amongst the public and stakeholders at a time when the title ‘ombudsman’ is becoming more recognised and trusted. The Association would therefore urge the Assembly to amend the title of the proposed body to ‘the Northern Ireland Public Services Ombudsman’.”

The Bill itself makes clear that using the term ‘ombudsperson’ was a deliberate choice, not an oversight: ‘Name of the office

  1. The Committee preferred that the new office should be known as the Northern Ireland Public Services Ombudsman (NIPSO) as opposed to Public Services Ombudsman for Northern Ireland (PSONI).
  2. During the drafting of the Bill the Committee decided to replace Ombudsman with Ombudsperson as the latter is unambiguously gender neutral.’

We suggest that it would be one thing for the OA not to take a view one way or the other. But to include such a robust objection to the terminology in the proposed legislation appears to be a political stance, aimed at stifling discussion. Instead, the OA could have congratulated the Committee and the Northern Ireland Assembly on its forward thinking in using a truly gender-neutral term that is not yet widely accepted, and if necessary, promote a discussion on other suitable alternatives.

We queried this aspect of the response and expressed concern that the underlying principle of fairness (required for OA membership and cited in the response) does not appear to include equality and anti-discrimination. It may be that the Executive Committee members do not believe the terminology raises equalities issues. They are instead focusing on the need to avoid confusion and protect the ‘brand recognition’ of the term ‘ombudsman’.

‘…the ‘brand’ that the term ombudsman invokes is an important one. The Association’s criteria for ombudsman membership incorporates independence, fairness, effectiveness, openness and transparency, and accountability. Our members have cultivated the public’s awareness of these values to encourage the use of their services.’

Our question is therefore: is the ‘man’ of ‘ombuds-man’ essential to the brand?

Etymology

First, let’s consider the etymology: Proponents of retaining the ‘man’ format often cite the Scandinavian origins of the term. The OA did just that in its response to the NI consultation: “The word ‘Ombudsman’ is Scandinavian and means ‘representative of the people’. The term is gender-neutral in origin and in common usage throughout these islands, including by other schemes with jurisdiction in Northern Ireland.”

The ‘ombudsman’ entry on Wikipedia explains: “An indigenous Swedish, Danish and Norwegian term, ombudsman is etymologically rooted in the Old Norse word umboðsmaðr, essentially meaning “representative” (with the word umbud/ombud meaning proxy, attorney, that is someone who is authorized to act for someone else, a meaning it still has in the Scandinavian languages). … Modern variations of this term include “ombud,” “ombuds,” “ombudsperson,” or “ombudswoman,” and the conventional English plural is ombudsmen.”

If you enter ‘ombudsman’ or ‘ombudsperson’ into Google Translate and translate from English to Swedish, you get ‘ombuds’. Conversely, Google Translate converts ‘ombud’ in Norwegian to ‘ombudsman’ in English. This suggests that in Scandinavia, it is the ‘ombud’ part of the term that distinguishes an ‘ombudsman/woman/person’ from other offices such as adjudicator or commissioner.

We do not argue that we must emulate uses of this term in other countries at all costs, but as Scandinavia is regarded as the cradle of ombudsmanry (another controversial term) and is cited as an authority for ‘man’ not meaning ‘man’, we asked the experts. First, here are some Swedish examples of alternatives to the term ‘ombudsman’, revealed in a quick Google search:

What’s happening in Norway?

For a more in-depth look we explored what is happening in Norway. First, we Googled the Norwegian Wikipedia entry on ‘Ombudsmann’, which we translate to read: ‘Ombudsman (or ombud, which in fact is a label/description of a task one has a duty to undertake) is a person commissioned to protect interests and rights of individuals or groups.’

With that in mind, we wrote to the Norwegian Equality and Anti-discrimination Ombud (Likestillings- og diskrimineringsombudet; the ending ‘et’ in Norwegian stands for ‘the’), to ask about the ‘mann’ (‘man’ in Norwegian) part of the word which they had discarded from their title. In response we were told that theirs was the first scheme to adopt the term ‘ombud’ in place of ‘ombudsmann’ when established in 2006.

They sent us the White Paper for the law establishing the Gender Equality Ombud. The document uses the term ‘ombudet’ (the ombud) rather than ‘ombudsmann’ throughout the document, apparently without any need to engage in a terminology discussion or to justify the choice of title, despite being the first scheme to be so named formally.

This made a refreshing departure from what happened in 1979 when a committee was established to consider statutory amendments to the office of the Norwegian Parliamentary Ombudsman. The Select Committee considered the appropriateness of the title ‘Ombudsmann’ and discussed its pros and cons. It noted that the title does not say anything about actual function of the position holder, and importantly, that the term was not gender neutral. On the other hand, it was noted, the title was well incorporated in both Nordic and international usage.

The Parliamentary Ombudsman himself argued at the time that the Ombudsman office was an entirely personal arrangement, in that the Ombudsman must take a personal decision on all cases and cannot delegate decisions to others; the term ‘Ombud’, on the other hand, is more about the office than the person. In other contexts where the expression ‘Ombud’ is used, it is talking about institutions or positions where it is not essential to distinguish between office and person.

It is worth noting that these arguments do not nowadays apply in that most ombudspeople do not decide all the complaints that come before them and that the use of ‘ombudsmen’ by the OA on their website could be read variably as a title attached to the office holders or the scheme, as in:

‘Ombudsmen exist to deal with complaints from ordinary citizens and consumers about most public bodies and some services in the private sector.’

In the end, despite recognising that the term was not gender-neutral, the Select Committee considering amendments to the Office of the Norwegian Parliamentary Ombudsman rejected the minority view that the time has come to replace ‘sivilombudsmann’ with ‘sivilombud’, and concluded that the traditional term was to be retained on the basis that it was so well established that there is no basis for change.

This was 36 years ago.

Fast forward 16 years to 1995, when another discussion paper, evaluating the Children Ombud (established in 1981), offered a different insight into the modern understanding of the term ‘ombud’ vs ‘ombudsman’. Part 3.1 of the document explains that ‘the term ‘ombud’ is a positive concept, used in connection with resolution of social inequality…. In everyday use, ‘ombud’ refers to positions that carry particular activities of representing, protecting or promoting specific interests.’

After a brief reference to its history with the establishment of the first Swedish Ombudsman in 1809, it goes on to say that:

‘The term “ombudsmann” is one of the few Nordic words that entered the language internationally. In Norway, gender equality has gradually led to the use of the gender-neutral term “ombud“.’(emphasis ours)

‘In Norway, gender equality has gradually led to the use of the gender-neutral term “ombud”.’

The document uses the term ‘ombud’ throughout to denote the office, as in: ‘Ombudene kan ha mange ulike funksjoner’ i.e. ‘the ombuds can have many dissimilar functions’. Hence, the office of ‘Children Ombudsman’ is called in Norwegian ‘Barneombud’,i.e Children Ombud, and the institution is referred to as ‘barneombudsinstitusjonen’ – the children ombud institution.

We accept there is clearly no consensus even in Scandinavia with regard to replacing ‘ombudsman’ with ‘ombud’. So while the Children Ombud (Barneombud) became the model for the equivalent Swedish office established in 1993, the term ‘ombud was not adopted’, and it was instead named ‘Barnombudsmann’ – Children Ombudsman. However, as the above discussions and examples demonstrate, it is not viable to state that ‘ombudsman’ is gender neutral on the basis of its Scandinavian origin, meaning and current use.

Why does it matter?

Research by sociologists and linguistics experts indicates that language does affect behaviour and attitudes. Language, and particularly titles of office, that presume maleness as the norm (‘chairman’, ‘policeman’ etc) have an impact in the context of underlying gender bias in society and women’s lack of representation in public roles. The growing body of research validating the concern is set out in this piece by two academics at the University of Kent:

“For example, when people hear masculine generic language, they predominantly visualize pronoun referents as being male (e.g., Gygax, Gabriel, Sarrasin, Oakhill, & Garnham, 2008; Hamilton, 1988; Moulton, Robinson, & Elias, 1978; Ng, 1990; Stahlberg, Sczesny & Braun, 2001). Other research suggests that sexist language perpetuates male privilege (Kleinman, 2002), influences children’s gender schemas (Hyde, 1984), limits the perception of vocational choices for women (Briere & Lanktree, 1983), influences perceptions of status and competence (Merkel, Maass, & Frommelt, 2010), and even makes women feel ostracized (Stout & Dasgupta, 2011).”

“…research suggests that sexist language perpetuates male privilege, … influences children’s gender schemas, … limits the perception of vocational choices for women, … influences perceptions of status and competence, … and even makes women feel ostracized.”

Douglas Hofstadter, a professor of cognitive science in the US, wrote a stinging satire on the opposition to adopting gender-neutral language. In “A Person Paper on Purity in Language (1985)”, he used what he admitted was a shocking analogy to expose the absurdity of presenting ‘man’ suffixed words as gender-neutral. In the essay, Hofstadter replaces ‘man’ with ‘white’. Have a read and see what effect it has on your assumptions.

What alternatives?

We don’t believe there’s a right or wrong answer to this. But we’d like to encourage people to discuss it rather dismiss it. There are plenty of respectable ombuds organisations around the world that recognise the equalities issues of the term and use alternatives that have, over time, become well established. That alone suggests it’s worthy of discussion.

Let’s look at two option: ‘ombud/s’ and ‘ombudsperson’:

‘Ombud/s’

In Scandinavia, South Africa and New Zealand, the term ‘ombud’ is singular. In Norway:

In South Africa:

In New Zealand:

In the US, the terms ‘ombud’ and ‘ombuds’ are used interchangeably:

*This office uses all four terms—ombud, ombuds, ombudsperson, and ombudsman

  • Use of the term ‘ombuds’ goes back at least to 2006, when the well-known OmbudsBlog was set up:

‘Ombud’ is often used in the context of higher education, not just in North America, where it is the prevailing term, but in Europe as well. For example, the Studentombudet for Oslo and Akershus University College of Applied Sciences (HIOA) mentions her ‘ombuds’ work on Twitter, although she refers to herself as an ‘ombudsperson’ on her blog.

‘Ombudsperson’

‘Ombudsperson’ is recognised by the online Free Dictionary: “A public official who acts as an impartial intermediary between the public and government or bureaucracy, or an employee of an organisation who mediates disputes between employees and management.”

Conclusion, and an invitation to join the conversation

The OA argues in its response to the Northern Ireland consultation that use of the term ‘ombudsman’ is important to protect the brand recognition of these services and schemes. And as discussed in Parliament in February, ‘ombudsman’ is on the list of protected titles (‘Sensitive words and Expressions Regulations’) maintained by the Department for Business:

‘While anyone is free to set up a business providing ADR, ‘ombudsman’ is a sensitive word whose use in a company or business name requires prior approval by the Secretary of State.’

But is it not the ‘ombuds’ part of the term that is meant to be protected? If the intention is that only ‘ombudsman’ should be legally protected (although we note that the Regulations say that ‘that the specified words and expressions are specified in all their plural, possessive and (where relevant) feminine forms’), then even if there were legal protection of the title here in the UK, there’d be no barrier to someone setting up as The Telecoms Ombudsperson, or The Ombud for Health Services, or National Consumer Ombuds Service. It seems disingenuous to take such a literal stance, and contrary to the intention of efforts to protect the meaning of the ombuds role.

Surely it’s time we had this conversation in the UK? Tell us what you think.