Book review: Ombudsmen and ADR: A Comparative Study of Informal Justice in Europe

By Nick O’Brien

Nick O’Brien reviews a new book by Naomi Creutzfeldt on her study exploring national differences in complainants’ levels of trust in ombuds.

In her timely new book, Ombudsmen and ADR: A Comparative Study of Informal Justice in Europe, Naomi Creutzfeldt (University of Westminster) shows that ‘the relationships people have with the informal justice system are shaped by their experiences and preconceptions about how the (formal) legal system and its agents behave and fulfil that role’. In other words, ‘people’s expectations of informal justice are rooted in practices of (national) legal socialization’.

Combining quantitative and qualitative research, the study, given additional urgency by the EU Alternative Dispute Resolution (ADR) Directive and the On-line Dispute Resolution (ODR) Regulations, focuses on ‘consumer disputes’ in the private sector (telecoms, energy, financial services, transport) and in the public sector (health, other public services). To test its central hypothesis it additionally identifies the ombud institution as an example of ADR more generally.

‘Typical German’ and ‘Typical British’ complainants

At the core of the argument is comparative empirical research on attitudes to law and ADR in Germany and the UK. A ‘typical German’, we are told, grows up ‘amongst many rules and endless efficiency’, and views basic rights as a ‘system of values’ or ‘objective norms’ which ‘radiate throughout the whole legal system’. Moreover, the German legal system actually works: it is efficient, accessible and predictable. As a result, the German relationship to authority is defined by ‘legality and order’, and when Germans complain, even to an ombud, they use ‘very legalistic terms’. The German ombuds in turn, ‘typically’ ex-judges with a staff of lawyers, respond in kind, since they have been ‘set up in line with the German national legal culture, which is heavily focused on rights, hierarchy and authority’. In many ways ‘the ombudsman (sic) replicates the formal justice system’.

In Britain, things are rather different. According to Creutzfeldt, a ‘typical British’ complainant grows up ‘without a set of values enshrined in a constitution’ and without the benefit of ‘codifying values in law’. Instead, ‘legal patriotism’ in Britain ‘coheres around parliamentary sovereignty and the piecemeal development of common law’. The average British citizen therefore ‘grew up amongst people who tend to grumble about the state of things’ but are less inclined to convert those grumbles into purposeful action. They will, however, have ‘strong attachment to the local’, distrust central government and politicians, and retain high expectations, ‘even a feeling of entitlement’, towards public services.

By contrast with Germany, the courts in Britain do not work very well at all: Creutzfeldt says they are ‘overrun’ and have ‘unpredictable outcomes, duration and costs’. As a result, they are not seen as ‘an efficient dispute resolution model for consumer complaints’. The ombud in the UK, as a result, far from emulating them, is ‘set up as a counter-balance to the formality and inaccessibility of the courts’ and so provides ‘a less formal and less legalistic process’ than its German counterparts: ‘in the UK national system, the architecture of the less legalistic approach to ADR is designed to enhance legitimacy, trust and acceptance’.

For the most part, then, it seems, people get the sort of ombud they deserve: legalistic Germans get legalistic ombuds who reflect national preferences for order, legality and hierarchy; less legalistic Brits get less legalistic ombuds, who reflect their preference for something rather less formal. Although there is a cross-cultural expectation that the ombud will fulfil one of four roles, as interpreter (‘to help me understand what it’s all about’), as advocate (‘to hand over my problem’), as ally (‘to share the responsibility’), or as instrument (‘they have the right tools to help me’), even here national differences surface: in Germany, the ‘ally’ and ‘instrument’ roles in particular are framed in ‘very legalistic terms’, whereas in the UK they are expressed in ‘narratives that are framed less legalistically, less formally’.

Motivation and trust

These national cultural differences also extend to motivation: whereas Germans tend to be ‘more focused on getting their money back and to get what was lawfully theirs’, the less legalistic and rights-conscious British are more concerned about ‘changing the business process and preventing others from having the same problem as themselves’. This distinction is important for respective perceptions of procedural justice: procedural justice matters to British complainants more than to German complainants, for whom ‘the most important outcomes were to be given what was owed financially, based on what they felt was their legal right’. Yet authority-respecting Germans are still more likely than cynical Brits to accept a decision, even if the outcome is only partially or not at all in their favour.

An important sub-plot to the main narrative of national idiosyncrasy concerns ‘trust’ in the public and private sectors in the UK. Not only are British people who use public-sector ombuds likely to trust them less than those who use private-sector ombuds, they are less likely too to be convinced that they are acting lawfully, to have confidence in them and to feel a moral obligation to accept their decisions. Possible explanations include the changing role of public sector ombuds in the UK, caught at a ‘crossroads’ between individual redress (‘fire-fighting’) and a more active role in improving administrative decision-making (‘fire-watching’), and the general decline in trust in public institutions, with its knock-on effect on public sector ombuds. One of the public-sector ombud’s ‘key roles’ is, after all, ‘to promote trust in public services and government’, just as the private-sector ombud aims to promote trust in the market (and in the EU context more specifically, ‘to encourage consumption in the single market’).

The ombud as a flexible work-in-progress

Why does any of this matter? It matters because, at a theoretical level, we now have further evidential grounds for rejecting the view that the ombud is simply a ‘legal transplant’ which is ‘replicable in every local cultural context’. Instead, a proper place must be found for the complexities of local conditions, especially as expressed by national attitudes towards legality and authority. We can as a result begin to understand more fully how the process of legal transplantation operates at street-level and what its local limits and conditions are. More specifically, we can take seriously the proposition that the ombud is ‘an idea or model that can be adapted into new contexts and, therefore, potentially, create its own culture and specific rules’. To that extent, the ombud can usefully be imagined as a ‘flexible model that comes with a set of tools designed to fit into an existing legal system’.

It matters too, because in practice, the extent to which people trust an ombud or other form of ADR will depend on how far they meet practical expectations generated by the national legal culture. To that extent, the process of reception, whether in the public or private sector, is always a work in progress, a task of continual renewal as the institution adjusts to local conditions, as well as to broader environmental changes, such as digitalisation. Only by attending to such local conditions, can ADR find its own language and culture, and so ‘from the inside out’ aspire in time to become a form of institutional Esperanto spoken across the continent of Europe (notwithstanding Brexit, whose implications for the future of ADR in the UK Creutzfeldt is inclined to minimise).

With this publication, Naomi Creutzfeldt brings new socio-legal insights to bear on ADR scholarship, and in particular on our understanding of the limits, and potential, of the ombud institution. Combining original empirical research in the UK and Germany with fresh theoretical applications, she persuasively makes the case that what counts as ‘fair’ in an ADR context is decisively shaped by national legal culture. Local ‘legal consciousness’ and ‘legal socialization’ are thereby exposed as the determinants of ‘trust’, and national conceptions of legality as the conditions of informal justice. This formidable study stands, therefore, as a powerful illustration of the interdisciplinary approaches and methodological pluralism the author herself advocates if we are to identify more trustworthy forms of ADR, and, despite national differences, a genuinely transnational ‘ADR space’.

Further issues for reflection

Creutzfeldt identifies three topics in particular that warrant further attention: ombud and ADR ‘disputes system design’; the participation of vulnerable ‘invisibles’ who do not use either the formal, or informal, justice systems; and the challenges posed by ‘the digital’. In addition, three other issues invite further reflection.

First, the opening premise of the book is that the ombud is ‘an institution that provides ADR in the informal justice system’ and indeed that ‘the terms “ombudsman” and “ADR” are often used in the same breath’. Yet, as becomes clear, the role of the ombud, at least in the public sector in the UK, remains contested, with ‘fire-fighting’ and ‘dispute resolution’ just one part of the equation alongside broader systemic ambitions. The extent to which the ombud can serve as an exemplar of ADR, or indeed of how far even in the UK the institution has escaped the snares of ‘legalism’, should not perhaps be taken entirely for granted.

Secondly, whilst considerable weight is given to the ‘national legal cultures’ of the UK and Germany, there is perhaps scope for further investigation, both historical and jurisprudential, of the character of those cultures, of the extent to which the ‘common law’ and ‘civil law’ divide is as pertinent as national origins, and of how legal cultures relate to broader cultural types, such as those (‘hierarchical’, ‘egalitarian’, ‘individualist’ and ‘isolate’) popularised by social anthropologist Mary Douglas. In this regard, it is a pity that, for reasons explained by Creutzfeldt, France had to be excluded from the study.

Finally, and with broad political and philosophical implications, there is the larger issue, to which Creutzfeldt rightly alludes, of the relationship between ‘informal justice’ and ‘social justice’, of how far ‘ADR systems’ (including ombuds) can reinforce positive values, enable democratic participation for more than the ‘usual suspects’, and thereby enhance the public good rather than merely the resolution of individual disputes. Creutzfeldt mentions in passing her current work with Chris Gill (Glasgow University) on access to justice across Europe in the energy sector. If the present study is anything to go by, that will be well worth waiting for.

Naomi Creutzfeldt, Ombudsmen and ADR: A Comparative Study of Informal Justice in Europe (Palgrave Macmillan, 2018).

About the author:

Nick O’Brien is Honorary Research Fellow, Liverpool University, and the co-author, with Mary Seneviratne, of Ombudsmen at the Crossroads (Palgrave McMillan, 2017).