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Mediation and ADR, Ombuds and reviewers

A Democratic Alternative?

commentary

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By Nick O’Brien

In a recent article in the Journal of Social Welfare and Family Law (‘The ombudsman as democratic alternative: reading the EU Consumer ADR Directive in the light of the PASC reports’, 37 (2015) 274-282) I argued that ombuds – or at least those who still aspire to some sort of ‘public’ function – should not be seduced by the EU ADR Directive into a purely consumerist malaise.

It will be very tempting no doubt to position the ombuds institution as just another option that broadly fits the ADR bill and to see ‘dispute resolution’ as the end all and be all, with volume, speed and modest financial redress the sole markers of success.

That would be a pity. Negotiated justice is no doubt a viable and necessary alternative to adjudication by the courts in some situations. But it is not always the only, or even the most desirable, alternative. The ombuds institution sits somewhere between the two extremes of ADR and judicial decision-making. Unlike ADR entities, ombuds do actually make decisions; and unlike the courts, they normally do so by following a process that is relatively informal and inquisitorial.

At its best, the ombuds role is more than anything a democratic means of responding to citizen grievance. It does not assume that the only thing to do in the face of an individual dispute is resolve it as quickly as possible, if necessary by sweeping it under the carpet, so as to ensure a return to business as usual. Instead, the ombuds is equipped with the means to engage citizens in a deliberative process of adjudication that ultimately seeks to serve the longer-term common good rather than satisfy short-term individual demand. To that extent, an ombuds investigation and decision should always be a means to an end rather than an end in itself.

Of course, the consumerist approach appears to have the tide of history on its side and to be in keeping with the zeitgeist. But the cloak of modernity is in fact an illusion, a version of the emperor’s new clothes. Nearly everything we know about the way organisations function now tells us that they are ‘post-bureaucratic’ and ‘performance based’, exemplars of the new governance rather than the old command and control model.

Such characteristics have led to new forms of reflexive regulation, characterised by ‘soft law’ and deliberative or experimentalist adjudication rather than hard law and definitive non-revisable decision-making in a formal hearing context. To that extent the judicial approach is indeed under threat, but not the need for adjudication as such. The underlying jurisprudence of a durable, and democratic, alternative is rooted in legal pragmatism rather than any rival form of legal liberalism that privileges individual dispute resolution at the expense of richer public benefit.

The classical ombuds is, subject to some discrete but necessary reform, ideally suited to serve the needs of adjudication in this ‘new governance’ context. The reports of the Public Administration Select Committee on the PHSO in 2014 gently nudged the institution in that direction, with their emphasis on active participation and access, on the importance of disseminating decisions more widely so to as to embed principles as norms, and on the need for increased transparency about the way in which the ombuds fits into the ‘system’ in its entirety, conceived as a co-ordinated and coherent whole.

It would be unfortunate, and ironic, if in the short-sighted scramble to grab a piece of the ADR action, the ombuds community unwittingly hitched itself to a somewhat impoverished bandwagon which has already been overtaken by organisational design and regulatory theory, not least when the ombuds has the potential to constitute a richer, more truly democratic response to citizen grievance.

Nick O’Brien was Specialist Adviser to the Public Administration Select Committee 2013-2014.

Discussion

5 thoughts on “A Democratic Alternative?

  1. To properly hold a public body to account you need an independent court staffed by an independent judiciary. The ombudsman, a one man adviser/mediator, with little power to enforce any remedies, provides a poor service for the citizen looking for redress. Yet ombudsman are in vogue within academic circles, who seem to adapt their ideas for the era of austerity. I know I have experienced both means, I would want a Tribunal every time.

    Posted by robertissimoii | October 19, 2015, 8:25 am
  2. Dear Nick, thank you for taking the time to respond to my comments. The problem with being an experienced lawyer and a trained academic is that it shapes your mind set. Consequently, understanding the experience of the Ombudsman from a complainant perspective is akin to a trained musician trying to understand the musical compositions of the Beatles. Without formal training the Beatles were not aware of the ordered tramlines and simply made the music they enjoyed.

    Of primary concern to academia should be the numbers of people who view and comment on sites such as this. Where are they? Who are you writing for and more importantly how does your research serve a useful purpose. If you are simply talking to each other, those with the aptitude, what is the point?

    Empirical research will look at data, much of which has been released from the Ombudsman themselves. Need I say more. The best research you could do is put in a complaint of your own or alternatively monitor a complaint from the start of the process. I can put you in touch with someone just about to submit their complaint to PHSO and you can use their case as primary research.

    “You can’t really understand another person’s experience until you’ve walked a mile in their shoes.”

    Della Reynolds

    14th October 2015

    Posted by phsothefacts.com | October 14, 2015, 2:37 pm
  3. Response to Della Reynolds

    Dear Della Reynolds

    Thank you for taking the time to read and comment on my recent blog.

    I suppose the key phrase in the extract you cite is ‘At its best’.

    Having had many years’ experience as a lawyer and having also worked for, and been associated with in other ways (but not, it is true, as someone with a complaint), a number of ombudsmen for some time also, I do believe that ‘at its best’ the ombudsman system offers something potentially much richer than the civil justice system.

    One of those things is the ability to see, and try to shape, the bigger picture. The article to which the blog refers draws on the PASC inquiries of last year to suggest some of the changes that might be needed to make that happen more often.

    Your own experience of one or more ombudsmen in practice is no doubt also a valuable resource for working out what needs to be improved.

    Perhaps you will be able at some point to suggest ideas to UKAJI for the sort of empirical research that might be conducted usefully by other academics with the aptitude for that sort of approach.

    Nick O’Brien
    14 October 2015

    Posted by Nick O'Brien | October 14, 2015, 9:50 am
  4. Dear Nick O’Brien, have you ever had a personal case handled by the Ombudsman? It would appear not by your comments in this paragraph:

    “At its best, the ombuds role is more than anything a democratic means of responding to citizen grievance. It does not assume that the only thing to do in the face of an individual dispute is resolve it as quickly as possible, if necessary by sweeping it under the carpet, so as to ensure a return to business as usual. Instead, the ombuds is equipped with the means to engage citizens in a deliberative process of adjudication that ultimately seeks to serve the longer-term common good rather than satisfy short-term individual demand. To that extent, an ombuds investigation and decision should always be a means to an end rather than an end in itself.”

    What exactly is the ‘end’ to which the Ombudsman investigation is a ‘means’? From first hand experience of my own case and those of hundreds of others I can inform you that the ‘longer term common good’ would be that of the public bodies who are able to withhold evidence and have unsubstantiated accounts accepted at face value. The ‘short-term individual demand’ remains firmly dissatisfied with a lengthy process of delay, deny and defend which ultimately leads to a whitewash report and case closure. The end product being unsatisfactory public service delivery given a green light for impunity and in the case of the health service, unsafe practice allowed to continue unchecked.

    If only academics came down from their clouds more often and moved about amongst us real folks.

    Della Reynolds

    Posted by phsothefacts.com | October 8, 2015, 2:56 pm

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