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.

Informal resolution of complaints by Armed Services personnel

Posted: June 15, 2016 | Author: | Filed under: informal resolution, ombuds | Tags: , , , | Leave a comment

Nicola Williams discusses how her scheme assesses the suitability of informal resolution for complaints made by those serving in the UK Armed Forces. This was one of the themes in our mapping study of how ombuds use informal resolution: do they have criteria for assessing the suitability of informal resolution, rather than investigation, of complaints? This post was originally published on 11 April 2016 on the website of the Service Complaints Ombudsman for the Armed Forces and is republished here with permission.

Nicola Williams

By Nicola Williams

Service personnel who are considering making a complaint often contact my office for information on the process.  At times what they want to know is whether making a Service complaint to their Commanding Officer (CO) locks them into the formal complaints process, or whether they can still have their complaint resolved informally.  The simple answer is that it doesn’t lock them into the formal process.  In most cases it is for the individual making the complaint to decide whether they would like to follow a formal or informal process, but not all complaints can be resolved informally.

Complaints are made about many different issues.  Some of those issues only affect one person and others have the potential to affect many.  While all complaints are serious to the person raising them, some complaints involve very serious allegations that require thorough investigation whereas others can be resolved quite quickly without any investigation. In many instances Service personnel will wish to pursue informal resolution as they perceive that the process is faster. However, formal complaints should be handled without unnecessary delay and therefore speed is just one factor.

When deciding whether informal resolution is appropriate, the questions that need to be asked are:

  • Is this an issue that can be resolved quite quickly without investigation?
  • Will informal resolution provide a way to resolve the situation before a bigger problem develops?
  • Is the outcome I want to achieve by making a complaint possible if the complaint is handled informally?

When raising a complaint, any Service person who wishes to consider informal resolution should discuss these factors with their CO to help them decide whether informal resolution is appropriate for their complaint.

A good example of where informal resolution may be appropriate is in cases where complaints concern performance appraisals.  If a Service person made a complaint that they were unhappy with something that had been written in their report, the CO might agree that it is appropriate for a particular word or phrase to be removed or rewritten. If the individual was happy that this addressed their complaint no investigation would be required and the change could happen quite quickly.  However, had the individual made a complaint that they were given a bad report due to bias or discrimination that would require an investigation as they are very serious allegations that need to be proved in order to reach an outcome.

Another example of where informal resolution may be appropriate is where there is workplace conflict that has the potential to be resolved through mediation. Mediation is a form of alternative dispute resolution where a third party brings two people together to discuss the issues affecting their working relationship.  The purpose of the discussion is to have both sides understand how the other person feels about the situation and to try and find an appropriate and positive way to move forward.  This can be a very effective way of resolving conflict when it is used at an early point. Mediation may not be appropriate where the conflict has escalated and certainly cannot be used if either party is unwilling as it is a voluntary process.

In the past individuals have raised concerns with my office that they felt pressure to engage in informal resolution, or that they withdrew their formal complaint believing it would be resolved informally, but no action was ultimately taken to resolve their complaint. Whether Service personnel choose to pursue their complaint formally or informally, they should feel confident that it will be handled properly and without undue delay. As the Ombudsman I have the power to investigate alleged undue delay in the handling of informal complaints. I hope that this will provide Service personnel with the assurance that they can choose to pursue informal resolution and come to my office if they believe there is unwarranted delay in the process.

I encourage individuals who have raised a complaint to consider alternative options that could lead to an early and satisfactory resolution where it is appropriate to do so. If informal resolution is pursued initially but is not successful, it is still open to the individual to make a formal complaint if they wish. Ultimately it is for the individual to decide which process they want to follow – no one should feel that they are being forced to accept an informal process when they want to pursue a formal complaint.

 

About the author:

Nicola Williams is the Service Complaints Ombudsman for the UK Armed Forces.

 

‘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.

Report from the Ombudsman Association conference

Posted: June 3, 2015 | Author: | Filed under: ombuds, research | Tags: , , , | Leave a comment

This piece was originally posted on the blog of the UK Administrative Justice Institute on 22 May 2015 and is republished here with permission.

Essex CAJI

OA logoThere was a very good turnout for our workshops on research at the Ombudsman Association annual conference in Loughborough last week.

The opening plenary session of the conference suggested that research would be a recurring theme throughout the conference. Dr David Halpern of the Behavioural Insights Team discussed the way organisations can influence behaviour through small changes (the wording of letters, for example) to lead to better decision-making. He discussed evidence suggesting people want feedback, the ability to share experiences, and closure. They also want human contact. He urged ombuds to consider experimenting and running controlled trials of different methods and approaches to iterate and refine how complaints are handled.

Dr Naomi Creutzfeldt (Centre for Socio-Legal Studies at the University of Oxford) discussed her ESRC-funded comparative research on users’ trust of and perceptions of ombudsman, surveying complainants who have used 14 consumer ombudsman schemes across Europe. She is testing…

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On the road(s) to reform

Posted: March 25, 2015 | Author: | Filed under: Cabinet Office, EU ADR Directive, harmonisation, ombuds, transparency | Tags: , , , , , , , | Leave a comment

We have seen this past week the publication of two significant markers in the move towards reform of the ombudsman landscape. Both highlight the difficulties faced by a ‘system’ of redress that has developed in an ad hoc way. Both take account of the increased consumerisation of redress, in public- and private-sector disputes. Both attempt, in their own way, to bring about greater harmonisation of the system and to improve access, consistency and accountability. They take very different approaches to such attempts, however: one, to set a relatively low baseline of standards which which redress providers must comply, and thus encourage a multitude of competing providers; the other, to merge existing redress providers into a single scheme, with enhanced powers and remit.

On 17 March, the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations were laid before Parliament. These regulations are the first step towards implementation of the EU ADR Directive, which requires member states to ensure that independent ADR is available for disputes over goods and services. They set out the requirements for ADR providers and the bodies (competent authorities) that will approve them. The Department for Business explains that that the regulations will ‘overlay an existing landscape of disparate provision of alternative dispute resolution’.

‘Disparate’ is perhaps a kind way to describe the landscape. In spite of calls for greater harmonisation, the motley range of ADR provision will remain, in some cases providers competing with each other for customers (businesses) and sharing only compliance with the minimum requirements which with providers must comply.

Although they are minimum requirements, there is something positive in the fact that information requirements will apply to all approved providers. Schedule 3 sets out the requirements that competent authorities must be satisfied that an ADR provider meets before they can be approved. The requirements for transparency (16 of them) are listed under section 5 and require that an ADR provider must state on its website a range of information about how it works, including its procedural rules and the principles the ADR provider applies, and the main considerations it takes into account when seeking to resolve a dispute. That’s helpful, although the level of detail of such information is left open.

Then today we have the long-awaited Cabinet Office consultation on the reform of public services ombudsmen in England. This sets out a number of high-level questions about the overall premise, leaving the detail to a later stage. The questions relate to the underlying principles of the proposed reforms; which services to include; what sector-specific expertise to retain, and what management structure; mechanisms and routes of access for complainants; and investigative powers. The deadline for responses to the consultation is 16 June 2015.

The consultation takes forward the proposals of the Gordon Review, which in its report completed last year but only published today, recommended creating a new Public Service Ombudsman (PSO), bringing together the existing jurisdictions of the Parliamentary and Health Service Ombudsman (PHSO), Local Government Ombudsman (LGO) and Housing Ombudsman (HO). Gordon proposed bringing into the remit of a single Public services ombudsman other public services that aren’t currently subject to an ombudsman’s oversight. Because of the complexity of the way public services are now contracted, paid for and provided, Gordon also recommended ‘following the public pound’ and including within the ombudsman’s jurisdiction arm’s length bodies and private-sector providers who either receive public funds or are contracted by government to deliver public services.

From the perspective of the research we carried out on informal resolution by ombudsmen, it is interesting to note that Gordon highlights as one of the improvements to come about with the integration of the public services ombudsmen is greater harmonisation of published information about complaints and outcomes. The Review report states, in para 140:

“In response to the Law Commission’s report, the public service ombudsmen in England accepted the need for greater harmonisation of practice around the way that details about complaints and ombudsmen conclusions are published and shared. The emphasis in the Law Commission’s report was rightly placed on how transparency around ombudsman decisions can be increased – and this was subsequently picked up by PASC in the context of how it might be possible to increase the public visibility of the ombudsman brand. Transparency in this area is also a key means by which the PSO can drive its own internal standards, building and demonstrating the quality of investigations and building a sense of autonomy and responsibility amongst staff within the organisation.”

Transparency and accountability are principles that all ombudsmen subscribe to. Indeed, the vast majority of schemes that we surveyed in our research on informal resolution 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.

We also found in our survey that transparency was a likely casualty of increased informality. Although formal decisions (or determinations or rulings) are often made public, complaints resolved informally are not. The majority of schemes we surveyed publish some information on informally resolved complaints – most commonly in the form of anonymised selected case summaries. Some, however, publish only statistics, and some publish nothing at all, including one scheme using informal resolution in 90% of its complaints.

If only decisions are published, and these become the minority method of closing complaints, there is less opportunity for ombudsmen to give feedback and to set standards for good complaints handling for the bodies in their jurisdiction. It also makes it difficult for complainants, and those complained about, to assess a proposed resolution against decided outcomes.

We will have to wait to see whether these two roads to reform are in fact heading in opposite directions.

What do the parties think about informal resolution? Research needed!

Posted: January 30, 2015 | Author: | Filed under: customer satisfaction, EU ADR Directive, informal resolution, ombuds, research, users' views | Tags: , , | Leave a comment

We know a bit about what ombudsmen and other complaint-handlers think about using informal resolution approaches. In our mapping study, The use of informal resolution approaches by ombudsmen in the UK and Ireland, we asked ombudsmen why they use informal resolution. The answers tended to fall into one of two camps: because they are required or expected to do so by statute, or because it is simpler and quicker. The latter responses included acknowledging that speed can be a benefit for parties as well as for the ombudsman. Some also mentioned the added benefit of informal resolution helping to maintain or rebuild relationships between the complainant and the complained-about.

For the most part, however, views of what parties themselves think about the processes ombudsmen use to handle their complaints are conjecture or are gleaned from customer satisfaction research, complaints feedback, and other sources that have some limitations in terms of self-selection of samples and how robust the findings are.

A closer look: legal complaints

An interesting view of how informal resolution can benefit complainants and complained about in different ways appears in the Annual Report published yesterday by the Legal Ombudsman (LeO). The report states:

“We prefer to resolve complaints by brokering an agreement between the lawyer and the complainant. Therefore, our investigators attempt to settle complaints as amicably as they can, while bringing both parties (both the lawyer and the client) to a swift and mutually beneficial resolution. We call this “informal resolution”.

Where an informal resolution cannot be reached, either party may ask an ombudsman to make a final decision. At this stage the resolution will be based less on resolving the complaint amicably and more on what is deemed fair and reasonable.”

LeO reports that last year it resolved 39% of complaints informally (a slight decrease from the year before). Almost the same number (38%) were resolved by ombudsman decision. (The remaining 24% were either withdrawn or dropped by the complainant or discontinued by an ombudsman.) LeO expresses its disappointment that more complaints are not resolved informally:

“This is not the outcome we had hoped for, but as we have said in previous Annual Reports, the complexity of legal complaints means that often people want to exhaust all options before accepting a decision.”

The figures suggest there are more financial remedies agreed at the informal stage (67%) than recommended by ombudsman decision (40%). Most financial remedies are less than £1,000 (30% of ombudsman decisions, and 40% of informal resolutions).

The difference between outcomes of the two processes is most marked in the remedy ranges of £1,000 to £19,999: 9% of ombudsman decisions were in this range, but 17% of informal resolutions were.

LeO states:

‘In our view, these figures suggest that complainants do as well when accepting an investigator’s recommendation and opt for an informal resolution as they do when insisting on an ombudsman’s decision. It may also reflect an increase in the number of lawyers offering reasonable remedies at the first tier, which, if true, is a positive development.’

Good for complainants – what of the complained-about?

But for lawyers the opposite might be true. As Legal Futures has pointed out, in the report LeO urges

‘lawyers to think twice before pushing for formal decisions rather than accepting informal resolutions to complaints, even though the figures showed that the outcome of the former was less likely to result in the lawyer having to pay the client some money.’

LeO suggests that for lawyers, the advantages of informal resolution are in saving time and avoiding reputational risks. The report states:

‘While lawyers might be tempted to hold out for an ombudsman’s decision, they should factor in the additional time and resource they will have to put into managing the complaint and accept that the customer is likely to walk away feeling even less positive about their firm with the increased risk to their reputation that this entails.’

Yet another risk to informal settlements for parties complained about has been highlighted in relation to the Financial Ombudsman Service (FOS). An article last autumn in the financial press highlighted a loophole arising from court ruling on a FOS case, relating to whether a complainant can pursue further redress against a financial firm after a FOS decision:

‘The problem lies in the word “award”, which specifically applies to final and binding orders issued by an ombudsman reviewing a case.

In order to go before an ombudsman, a Fos complaint will first be reviewed by an adjudicator which would recommend a resolution. It is only passed on if either party rejects the recommendation.‘

The article suggested that if parties agree to an informal settlement (by adjudicator recommendation), the complainant could still be free to pursue more redress in court. It advises financial advisers (those complained about) to insist on either an ombudsman decision (so getting a final award that doesn’t leave them open to being sued for more, but risking being ‘named and shamed’) or a settlement via adjudicator that makes it clear it’s in full and final settlement.

Seeking parties’ views

Our mapping study found that very few ombudsman schemes ask their users for feedback specifically about informal resolution, though one reported that its ‘customer satisfaction research consistently shows informal investigations are the most popular type of investigation’ with both parties. Service complaints from users can also provide feedback on the processes used to handle complaints. Another ombuds reported that feedback on its informal resolution processes is generally positive, although some complainants question whether it treats the respondent service provider too softly.

The lack of information is striking when, as we found, most ombudsmen use informal resolution processes, and some for as much as 80% of the complaints they handle. We note in our report of the mapping study that there are calls for greater consistency in customer satisfaction reporting among UK ombudsmen. We also note, however, that the EU ADR Directive does not appear to contain any specific requirement to introduce customer satisfaction surveys or to gather feedback on case-handling processes.

It seems clear that research is needed on what users of ombuds schemes – both complainants and complained-about – think of processes used for complaints, and the outcomes they achieve.

 

Ebbs and flows: Select Committee explores changing role of Housing Ombudsman, including use of informal resolution

Posted: December 22, 2014 | Author: | Filed under: informal resolution, ombuds, transparency, Uncategorized | Tags: , , , | Leave a comment

In a pre-appointment hearing on 16 December 2014, the Communities and Local Government Select Committee questioned the preferred candidate for the role of Housing Ombudsman, a vacancy that opened up when the former ombudsman retired in October.

The recruitment process itself was unusual. There was a very short timetable (six weeks from advertisements to preferred candidate being identified). The Select Committee had not been involved in previous appointments but asked to hold a pre-appointment hearing in this case, citing its similar role with the Local Government Ombudsman. And the post is clearly a temporary one whose future is tied up with the Gordon review of the Parliamentary Ombudsman and the public services ombudsmen for England, announced by Oliver Letwin in July. All those aspects are of interest in themselves.

We’re interested particularly in the mentions of informal resolution that were made at the hearing. The candidate, Denise Fowler, is a civil servant, solicitor and former housing adviser. She has experience of working with the Housing Ombudsman, and she mentioned in her responses changes in the way the ombudsman approaches informal resolution. Our research on informal resolution found that the process changes she mentions were significant and not just a matter of terminology.

An extract of the session transcript is below, with commentary from our research findings:

Q22    Mark Pawsey: You told us that you worked at the Housing Ombudsman before, and that was 2000 to 2002, I think. Is that right?

Denise Fowler: Yes.

Mark Pawsey: That is 12 years ago now.

Denise Fowler: Yes.

Q23    Mark Pawsey: Regarding what you know about the Housing Ombudsman now, how is it different from what it was when you were there before?

Denise Fowler: What it looks like is that they have done a lot of work to move towards early resolution of complaints and real-time resolution of complaints.  From what I can see on the website, 87% of complaints are now resolved informally, which seems amazing.

Q24    Mark Pawsey: What would it have been previously?

Denise Fowler: I do not know what the exact figures were when I was there in 2000 to 2002.

Q25    Mark Pawsey: Was it significantly less than that?

Denise Fowler: Significantly less than that. We had an evaluation team that used to seek to try to work with landlords while issues were still going through the complaints procedure and try to resolve things earlier, and we had a procedure that had an informal and a formal determination, but it was a different procedure. That is one of the big changes.

[Commentary: Our research found that in 2013-14 the vast majority of complaints (5,004 out of 6,582 enquiries received) were closed by what the ombudsman calls ‘local resolution’. The change Fowler notes appears to reflect a significant change in process, with a number of complaints referred back for resolution between tenant and landlord. The ombudsman told us, in our research, “We will focus on helping the parties to reach resolution themselves through the available local procedures (primarily the landlord’s internal complaints procedures and also the designated persons).”

This contrasts with the scheme’s previous role in providing informal resolution itself. In the late 1990s, the Housing Ombudsman was perhaps the most innovative among ombudsmen in its use of informal resolution, or appropriate dispute resolution (ADR); a third of its complaints were either settled or rejected, but of the rest, it closed 20% of cases by informal conciliation, 25% by mediation, 6% by arbitration and 15% by binding decision.

With the implementation of the Localism Act 2011, the Housing Ombudsman changed the way complainants can access the scheme, envisioning a more active role in informal resolution by MPs, councilors and tenant panels. In practice, the Housing Ombudsman told us, “Our intervention will enable the parties to talk to each other to find a solution they can both accept. By being conciliatory and inquisitorial in our approach we can help bring about a better and longer-lasting solution to the problem and can help preserve the ongoing relationship between landlords and tenants. We will help the parties to reach a consensus or acceptable agreement which reflects the best possible outcome for all involved.”]

Q34    Chair: What about transparency?

Denise Fowler: That is exactly what I think should be happening. That is what I said about having that data and publishing it.

Q35    Chair: And publishing the results of investigations as well?

Denise Fowler: Yes. The results of investigations are done anonymously at the moment, aren’t they? There is an argument certainly if we get into formal investigations. There is an argument about informal resolution that it is helpful, to encourage informal resolution, to keep those anonymous, but in terms of the formal resolution, I think there is an argument for making those public.

Q36    Chair: One of the things that came up with the Local Government Ombudsman was that, where things were done informally and there were precedents that came out of a resolution, if it was simply not published in any form, that could not be used as a precedent in other cases.  Most people would not know about it.  Is there not an issue here to be looked at as well?

Denise Fowler: I think that is different from naming names.

[Commentary: Lack of transparency of informally resolved complaints has been a long-standing focus of criticism – for example, as noted by the Chair of this session, the CLG Select Committee noted concerns [http://www.publications.parliament.uk/pa/cm201213/cmselect/cmcomloc/431/43102.htm] about the Local Government Ombudsman’s use of mediation and informal resolution and stated: “the Commission needs to be completely clear how the distinct processes operate and differ as well as the criteria against which complaints are allocated to these resolution processes.”

Academics have also raised concerns about transparency of informal resolution by ombuds – for example, Richard Kirkham and Philip Wells in “The Ombudsman, Tribunals and Administrative Justice Section: Evolving standards in the complaints branch”.

Responding to the Law Commission’s 2010 consultation on Public Services Ombudsmen, Advice Services Alliance (ASA) said that the use of alternatives to investigation may reduce the transparency of the public services ombudsmen’s work. ASA conceded that such enhanced powers would be welcome if they delivered fair outcomes for complainants more promptly and suggested two key principles: transparency of outcomes and the right for a complainant to request an investigation.

On its website, the Housing Ombudsman publishes case studies, including those of informally resolved complaints.]

Following the pre-appointment hearing, on 18 December, the Select Committee endorsed Ms Fowler as candidate for the role. They did so on the basis that she retire from the civil service rather than take a career break, because of the need for the Housing Ombudsman to be – and to be seen to be – independent of central government. The committee’s report and minutes of the hearing are available here.

 

Research into Models of Alternative Dispute Resolution

Posted: December 9, 2014 | Author: | Filed under: mediation, ombuds | Tags: , , , , , | Leave a comment

by Carolyn Hirst

Last week the Legal Ombudsman for England and Wales published a report of research commissioned from Queen Margaret University (QMU). The QMU research team (Chris Gill, Carol Brennan, Jane Williams and Carolyn Hirst) had been asked to investigate what the Legal Ombudsman could learn from other ADR providers in relation to developing its own model of dispute resolution.

The research involved a case study design and fieldwork was conducted with ten organisations: four in the UK (HMCTS Small Claims Mediation Service, Furniture Ombudsman, UK European Consumer Centre and PhonePayplus), one in Ireland (Financial Services Ombudsman), two in New Zealand (Banking Ombudsman and the Law Society’s Lawyers Complaint Service’s Early Resolution Service), one in Australia (Financial Ombudsman Service), one in Canada (Ontario Ombudsman) and one in the USA (ebay/PayPal).

What the research highlighted was the wide range of dispute resolution practices in use. It also illustrated some of the key design choices that ADR providers needed to make in relation to a dispute resolution scheme. These design choices fell within four areas: the use of online dispute resolution; the early stages of dispute resolution processes; mediation approaches; and the later stages of dispute resolution and building influence.

The report concludes by offering a model for ADR design, which sets out some key issues to be considered. It suggests these could be used as a ‘design kit’ for the creation or review of ADR processes. This design model has ten spectra, such as the funding mechanism of the scheme, the use of technology and the preferred type of settlement, along which an ADR scheme could decide to position itself. The report concludes that the particular context into which an ADR scheme is to fit will be crucially important in informing such choices.

The author is a co-researcher on the study of The use of informal resolution approaches by ombudsmen in the UK and Ireland .

‘Friendly solutions’ – new report notes pros and cons of informal resolution

Posted: December 2, 2014 | Author: | Filed under: European Ombudsman, informal resolution, ombuds | Tags: , , | Leave a comment

Putting It Right? – How EU institutions respond to European Ombudsman (Nov 2014) is a new report focusing on cases in which the institutions complained about (European Union bodies, offices and agencies) have accepted the Ombud’s proposals and learned from past mistakes.

The report includes information on the range of possible outcomes of complaints considered by the Ombud and the responses by the body complained about. The range of outcomes, shown below, describes an escalation from consensual to the most critical and directive:

  • cases settled by institution
  • friendly solution proposed by the Ombud
  • draft recommendations
  • critical remark
  • further remarks

The report notes that although friendly solutions can provide good outcomes for complainants, they are not effective at achieving systemic change:

“The main way the Ombudsman tries to achieve redress for the complainant is by proposing a ‘friendly solution’[6]. [footnote: 6 Such proposals are based on Article 3(5) of the Statute, which provides that “As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint.”] Such a proposal aims at a win-win outcome that satisfies both the institution and the complainant.

While friendly solution proposals may include a provisional finding of maladministration, the Ombudsman often considers it more constructive to avoid stating, even provisionally, that there could be maladministration. Rather, she identifies a problem or shortcoming in the institution’s behaviour that could be solved if the institution adopted the proposed friendly solution.

Where redress should be provided, it is best if the institution concerned takes the initiative, when it receives the complaint, to acknowledge the problem and offer suitable redress. This could take the form of compensation to the complainant or a sincere apology.

Whilst friendly solution proposals often achieve good outcomes for the complainant, they are rarely an effective instrument to achieve systemic change in the public interest.”

An institution can choose to reject a proposed friendly solution. In 2013, only 9 friendly solutions were accepted. There are, however, incentives to accept – the next stage of a complaint is a draft recommendation, and these are published:

“If the institution rejects a friendly solution proposal without good reason, or such a proposal is unlikely to be effective, the next step is usually what Article 3(6) of the Statute terms a ‘draft recommendation’. It is better for all concerned if the institution accepts a friendly solution than if it first rejects a friendly solution proposal and then accepts a draft recommendation. Draft recommendations addressed to the institutions are, simultaneously, published on the Ombudsman’s website. The Ombudsman may also choose to draw public attention to the case and to her efforts to obtain a solution, by issuing a press release at this stage on the maladministration identified. With a view to avoiding such publicity, institutions should seriously consider the added benefit, for their own work and for the image of the Union more generally, of accepting a friendly solution proposal rather than waiting for the Ombudsman to make a draft recommendation.”

The next stage for complaints which are investigated but where no friendly solution or recommendations are accepted is a ‘critical remark’. The report notes that “a critical remark does not constitute redress for the complainant. In many cases, a better outcome would have been for the institution concerned to settle the matter itself by acknowledging the maladministration and offering suitable redress.”

But the report also notes that complainants are not always right, “and the institution concerned is entitled to defend its position. About half of the cases that are not settled by the institution at an early stage eventually give rise to a finding of no maladministration.”

The Annex to the report gives examples of complaints closed by friendly solutions that were accepted by the EU institution.

Compare and contrast – informal resolution by sector

Posted: November 20, 2014 | Author: | Filed under: informal resolution, mediation, Nuffield Foundation, ombuds | Tags: , , , , , , | Leave a comment

We are grateful to the Nuffield Foundation for providing us with some supplementary funding in order to follow up on some of the issues that arose when we launched our report on The use of informal resolution approaches by ombudsmen in the UK and Ireland last month. One of the pieces of work we want to do is to look at approaches used by schemes operating in the same sectors but in different jurisdictions to see what similarities and differences there are in the way they handle the same types of complaints.

For example, three organisations in our mapping study deal with complaints about financial services: the Financial Ombudsman Service (UK) (FOS), the Financial Services Ombudsman Scheme (Isle of Man) (FSOS) and the Financial Services Ombudsman’s Bureau (Ireland) (FSOB). They are vastly different in size: the FOS handles half a million complaints each year, while the Isle of Man scheme handles fewer than 300, with FSOB at nearly 8,000. All three schemes use informal resolution, but the extent to which they do ranges from 94% of complaints (FOS) to 22% (FSOS) down to <1% (FSOB). Both FSOS and FSOB use a process they call ‘mediation’, but these appear to be quite different.

Only one, the FSOB in Ireland, uses what we might call ‘true’ mediation: a process where an independent third party helps the parties in dispute to try to reach an agreement and in which the parties, not the mediator, decide the outcome.

Mediation is offered to both parties in all cases accepted by the FSOB. The scheme describes its mediation as “a process where the parties to the complaint try to reach a solution through agreement with the assistance and support of a mediator rather than through an immediate investigation of the complaint and a decision from this Office on the complaint.” The mediator is one of three members of the FSOB staff who are trained and accredited in mediation. Mediations take place in person, with both parties attending, at the FSOB offices in Dublin. Parties are advised to set aside a full day to attend mediation in person, although in practice mediations are concluded within a few hours.

Mediation is voluntary for both parties, and the very small percentage of FSOB complaints going to mediation, even though it is the default offer of the scheme, suggests that buy-in by the parties is low.

We’d like to explore what these and other sector-specific schemes share, and how they differ.

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