The role of ombudsman in ADR and its impact on sovereign government - Coursework Example

? THE ROLE OF OMBUDSMAN IN ADR AND ITS IMPACT ON SOVEREIGN GOVERNMENT by Location of Paper DueDate Introduction The commonly held notion of Ombudsmen is that of a person who, outside the usual legal framework, acts on behalf of individuals or groups with little or no access to legal or administrative recourse. The ombudsman in this context acts as their legal agent and negotiator in settling grievances against a government or other public agencies, private companies and institutions. While usually asked by one party or the other to become involved, the ombudsman may take the initiative without being requested to do so. While formal definition of the role is not legally universally accepted, the description of the role is generally as stated and practiced within the limits and specifications of various legal systems and constitutions. Functioning on local, national and international level, the role of ombudsman is the purest and most effective form of alternative dispute resolution between individuals and more powerful entities. The Ombudsman: Concept and Mechanisms for ADR The role of Alternate Dispute Resolution (ADR) in resolving the grievances of private citizens has expanded over the years to achieve a status even among attorneys as a valid legal and useful practice. Rather than merely an alternative to costly litigation, it has resurrected ‘traditional notions’ about the use of negotiation and out of court settlement.1 Over the past two decades ADR has evolved into a complex arena for settling disputes, encouraged by the rise in popularity and acceptance of the ombudsman as prime impartial negotiator. With the increased use of ombudsmen, officials in this role can be found at all levels of government, as well as in settings of private industry and academia. Modeled on a long established Swedish precedent, the concept took hold in Europe the 1960s along with a growing ‘power to the people’ movement seeking redress for the average person against the powerful forces of government and industry in dispute situations. Ombudsman were to assist in achieving fairness by means of independence, unfettered access to records and persons, careful investigation, impartiality and the prestige of the office. Ombudsman today can be found in almost any official capacity where parties involved in disputes are in need of an impartial negotiator. Differences in the operational aspect among these negotiating agents often depend upon where he or she is expected to function, but always within the clearly defined parameters of impartiality and/or political neutrality. In the private corporate environment, the ombudsman may not only resolve differences between workers and employers, but often affect better conditions in the workplace that discourage extreme acts by the offended party or parties as a means to resolution. Mechanisms employed in these circumstances may prove simple or complex, depending upon the nature of the grievances or dispute, as well as the commitment and attitudes of the parties at odds. The goal, however, is always the same: a fair resolution to a conflict of interests that satisfies and is fair to both parties achieved in a non-litigious setting. In the public arena--as in disputes with government and public agencies—the ombudsman also functions as a bureaucratic monitoring mechanism. Basically, the activity in the public realm may be viewed as threefold: as stopgap measure to holding administrators accountable for treatment of citizens; as righting wrongs done to citizens, and as a tool to dissuade citizens from becoming alienated from the tangled government bureaucracy, rendering it, or seemingly so, more human and personal. As watchdogs, ombudsman look for potential government abuses, and at times, as is fair and appropriate to their role as impartial mediators, they can also vindicate officials unjustly charged in a grievance with wrongdoing.2 The position then is a hedge against what many citizens see as an all powerful bureaucratic system against which the individual, with few or no financial and legal resources available, would be otherwise powerless. In the private business situation the ombudsman is often employed in such situations as harassment and discrimination claims by workers. In this capacity he or she functions as listener, as a legal informational resource to both sides; and at times as role player and informal intervener.3 In this context, a more inclusive and detailed description of the conceptual and mechanistic role of the ombudsman is provided by the International Franchise Association (IFA) and summarized as follows: The ombudsman must display active listening skills, since many disputes will resolve themselves simply by providing an independent third party who is available to listen; the intellectual capacity to comprehend the underlying issues necessary for problem solving. With negotiation as a given starting point, the ombudsman must be familiar with and able to suggest various discussion options, or points of particular reference. Shuttling between interlocutors, the ombudsman brings sense and meaning to heated discussions that often accompany disputes. As an agent of change, he or she is expected to bring ‘elegant’ solutions to often contentious and distasteful problems. As an agent of change, whether in business or governmental dispute situations, the ombudsman should have a firm grip on and commitment to getting both sides on board with behavioural changes to prevent future disputes. 4 Apart from the actual and primary role as mediator of disputes outside of the legal system, the ombudsman may also function as an advisor to the firm on what trends have evolved that might put the company at legal risk in future. With the cost of litigation averaging today $297,000, ‘In today’s litigious environment, taking steps to reduce the risk of litigation is a smart business decision’. 5 On the other side of the bargaining table, the citizen or worker, whether wronged by a large private organization or the government or its agencies, can count on the ombudsman for protection against reprisal by larger more powerful entities against which they have lodged a grievance. Considering this multi-faceted position, the ombudsman then is the simultaneous protector of both sides in any dispute from a variety of perspectives, but particularly the individual from being ground under by powerful legal resources available to a larger more powerful entity. As might be imagined, while the general context in which ombudsmen operates in both the public and private arenas is fairly consistent, his or her actions may be restricted by laws of the various countries and situations in which they operate. In some the agent may have access to legal mechanisms not available in others, thus coloring the activity itself and its effectiveness, particularly but not always in protecting the individual. Even under the international human rights system and its EU ombudsman, legislation in various countries can limit the agent’s action (i.e., some laws for instance may prohibit the interview of prisoners, thus prohibiting the ombudsman from investigating a complaint from such individuals and thus proceeding with any ADR action). In any case, as might be concluded, the role of ombudsman and the mechanisms available depend largely on the laws and customs of the society in which he or she functions. The Public Model in Europe The Swedes are credited with the first ombudsman concept developed in the early nineteenth century. Its model for the public sector, which will be our focus, may be seen as the basis for countries in Europe. As a general conceptual guideline, the ombudsman is appointed by the legislature of the particular country to investigate citizen complaints against the general administrative acts of government, but may or may not include acts of its executive or judicial branches. The agent as in the general model prioritizes and assesses the validity of complaints and sets review schedules. Beyond this their authority to compel witnesses to speak or demand certain public records is dependent upon the country’s particular statutes.6 In forcing a public agency to act, their power can be dependent upon how seriously the official government of the nation views the office, their ability of persuasion, and their legal right to make issues public and thereby subject to the general scrutiny and pressure from the public to use alternate dispute resolution as a viable means of addressing a grievance. Ombudsman offices have been established in most European countries with democratic forms of governments. The traditional model [as evolved] and the one most popular are those based upon ombudsman concepts from Denmark and Norway ‘which while acting as a check on the administrative and executive branches do not have the power to investigate the judiciary or prosecute officials’7 The role does, however, beyond alternative dispute resolution, function as a compliment to the courts, applying the valuable mechanisms of informality, speed and accessibility’8, with the latter mechanism contributed to heavily by the fact that the use of ombudsman in court actions is gratis. Everything from prisons, to immigration, to old age homes and beyond can fall under the national agent’s auspices and control. With the power given to the role by the major governing body [i.e, Parliaments], ombudsman can go as far as suggesting changes in laws and issuing subpoenas [not often used]. They are also bound to issue an annual report to the major governing body, with particular emphasis upon agencies who fail to cooperate in investigations and thus hamper the ADR process and the ability of the ombudsman to perform his or her duties. This general profile of the European model has remained in tact over the years since the 1960s, with countries periodically tailoring amendments based on constitutional directives. The advent of the European Union and the European Ombudsman’s office in 1992 contributed heavily to such customization by including in the Maastricht Treaty functions of the ombudsman that were ‘defined very loosely...as “empowered to receive complaints from any other physical or legal person" residing or having its registered office within the European Union’ 9 Very broad terms, indeed. From the aspect of procedures and proceedings, the vagueness of the Treaty’s definition leaves ample question regarding the nature of what it terms ‘maladministration’ 10, which subsequently allows for different readings and perhaps too much latitude in interpreting aspects under various national law. Therefore, while ‘the Ombudsman concept [and its impact on ADR] is one which has grown rapidly in a variety of constitutional settings’ 11, its growth has adjusted itself to particular cultural and legal tendencies, all of which may or may not be in the best interests of employing the concept of alternative dispute resolution to best affect in conflict situations. The process, however, while seemingly direct in its intent, can be complex when considered in relationship to legal systems and courts of particular countries. Decisions on which cases might be fit for ADR versus those which should be heard in courts can be blurred by restrictive statutes. As a means of determining this, the European Council on the Role of Courts applies criteria both ‘functional and prudential’, the former being objectivity and precedent; the latter based ‘factors that make a court more or less suited... relative to costs, potential litigants preference, urgency of complaint and availability of other means, such as ombudsman activity, to provide resolution. 12 The European Commission, seeking to ensure a sound relationship between the mediation process and judicial proceedings, has been active in promoting the development of alternative dispute resolution through its Ombudsman by establishing common EU rules. However, these out-of-court mechanisms have been developed differently across the European Union. In Scandinavia consumer complaint boards are favored; countries such as Spain prefer arbitration courts. ‘Precisely because of this diversity, the status of the decisions adopted by these bodies differs greatly...’ from recommendations semi- or firm and legally binding decisions 13 It is in this context that we explore the role of ombudsman in alternative dispute resolution in the UK versus the same role in another European country, Denmark. Ombudsman in the UK Based on citizen complaints of maladministration brought by individuals against central government, a Justice Report in 1961 led to the appointment in 1967 of the Parliamentary Commissioner for Administration, the first of the public sector ombudsmen, as a means of access to justice for the individual. The role of ombudsman in the UK has grown significantly over the past ten years. From 2001 the country has seen the appointment by the Parliament of ombudsman in the areas of Pensions, Health Services, Police, Academia, Judicial Appointments, Estate Agents, Environmental or Green, and an overall Parliamentary Ombudsman to oversee and report on all activities. This rise of importance of the role, begun in the 1960s and seriously expanded to its current status, coincides with a growing popularity and acceptance of alternative dispute resolution as a means of conflict resolution. It also indicates the seriousness with which the government views the process and its relationship to the people it governs. In addition, while the basic ADR model of the ombudsman has become popular, the role of negotiator in some public sectors is rarely specified as ombudsman, with ‘(reduced) powers in comparison to the [actual] parliamentary ombudsmen system’ 14 Ombudsman in offices of the Police, Registrar, and Prisons for instance, are generally not used, preferring instead other internally developed systems of grievance complaint. These are ‘mechanisms...targeted primarily at remedying systems rather than redressing individual grievances’.15 Needless to say, the effect of this contributes to burdens on courts, as those offended, lacking an ombudsman and opportunity for alternative dispute resolution, believe it there only recourse. There are exceptions, however, as in the private realm where judicial attitudes regarding alternative dispute resolutions may apply if actions by private contractors affect the public interest. In such cases, remedies such as alternative dispute resolution may be used as a means of mediating compliance with terms. In essence, once a private contract crosses the boundary into public interest [the performance of a public service] it is no longer a private matter. In a case brought against the administration of private prisons such activity is allowed because prisons are supported by taxpayers, who are the ‘beneficiaries of imprisonment’ 16‘In these instances Her Majesty's Chief Inspector of Prisons may be the ADR proponent, or the Prison Ombudsman, or a combination of both. In by-passing the ombudsman, a member or members of Parliament can serve both functions if they choose, an important concept regularly applied, particularly in England and its particular laws that ‘turn on the willingness of the judiciary to develop the notion of legitimate expectation’. 17 ADR grievance address can be legally complicated and thwarted by this tendency toward remedies other than the direct intervention by an ombudsman. Other complications of law may involve legal restrictions in areas such as financial services, which, even if they wished use ADR and an ombudsman, may be prohibited from doing so by law. Such an incident is described by an outgoing ombudsman of the unit trusts of the Security and Investment Board (SIB) as ‘a bugger’s muddle’ for the company in its attempt to establish an ombudsman scheme for the oversight of its SRO’s and subsequent ADR activity for complaining investors.18 Despite the complexities of application, a good number of official independent ombudsman positions have been voted by Parliament over time covering the legal profession, insurance companies, building societies and other major areas of endeavor. Dispute resolution for other important services such as grievances file against the Social Security (SSD) pensions are still relegated to advisory boards denied the investigative powers of ombudsman to settle disputes. While providing a series of appeal processes, but with legal hands tied largely by statutory regulations, review processes are ‘minimal [in] scope’ and can not make any findings, discussions or decisions public...19 While earlier attitudes regarding ADR were associated with the ombudsman concept and mechanism, since then its fate in the UK has been somewhat diluted and marginalized. 20 Ombudsman in Denmark: A Comparison An excerpt from an article by Parliamentary Ombudsman, Ann Abramson, spells out clearly the differences in perception between the UK and our comparison country, Denmark, and its pure citizen rights focus interpretation of ombudsman as useful tool for alternative dispute resolution. Abramson writes: UNLIKE many treatises on the constitution of the United Kingdom (UK), the Government Green Paper on constitutional reform, The Governance of Britain, published in July 2007 does actually acknowledge the existence of my Office. The rather limited context in which it does so is, however, telling: the Parliamentary Ombudsman, we are told at paragraphs 76-7, should be subject to pre-appointment hearing with the relevant select committee before the Government's nomination of the candidate is accepted. Nothing wrong with that, so far as it goes; and true, the very mention of the Ombudsman in this context derives from the recognition that the role is one in which Parliament has a particularly strong interest because the officeholder exercises statutory powers in relation to protecting the public's rights and interests. What is absent, however, is any consideration of what those powers are and of how they do indeed relate to the interests and rights of citizens. More especially, in the context of a Green Paper on constitutional reform, what is missing is any sense of the constitutional role of the Ombudsman, of her relationship with the legislature, executive and judiciary.21 In 1953, well before the UK considered the ombudsman concept in ADR, the Danish Constitution included a provision for inclusion of an ombudsman elected by the Folketing (parliament) for the sole purpose of scrutinizing the State’s civil and military administration. In 1994 the nation amended its Constitution to extend the ombudsman’s purview ‘to all authorities that regulate the circumstances of citizens’. 22 It appears that while the Danes were seeking to expand the office over time, the UK was progressively limiting its use, electing instead to delegate ADR processes to bureaucratic agencies favoring less direct intervention. In Denmark, for instance, the ombudsman himself deals directly with prisons; there are no other alternative groups or agencies. It is his or her responsibility solely. In 1993 a total of 139 cases were investigated on the ombudsman’s own initiative. 23 Statistics in the UK by both the national and local ombudsmen tend to focus on complaints. Constitutional mandate in Denmark demands accountability, the process of discovery of which is directly democratic and based on citizen expectation. As a concept presented and accepted by the UK Parliament as a body, the stop gap measure that filters complaints through individual MPs disrupts direct access to negotiation as prescribed under basic ombudsman mechanisms, threatening a circuitous process that undoubtedly dilutes the ability of the individual in seeking redress. The question here may be that in this watering down of direct process, the constitutional rights of citizens in the UK, as opposed to the direct ombudsman concept applied in Denmark, are more apt to be circumvented in a maze of bureaucratic The filtering of grievances through MPs as discussed above presents a major diversion from the Danish model in that direct response and contact of ombudsman with citizens is considered essential and of extreme democratic importance in Denmark and is guaranteed under its constitution. Unlike the UK, it is the expressed responsibility of the Folketing to keep a watchful eye on the ombudsman and chastise the agent, or let him or her go if they are not, with full energy and intent, rightly representing the grievances of citizens. Their responsibility, also unlike the UK, governs all public agencies without exception, and there are few if any alternative dispute resolution mechanisms applied beyond the ombudsman. The expectation is that the person will work according to basic democratic ideas of individual representation against public agencies in concert with the Danish constitution and the rules governing its Folketing. ADR and Government Sovereignty Given the differences in various constitutions--what they will and will not allow in terms of the alternative resolution process--and the availability of grievance redress by citizens, one might expect government sovereignty to play an important role. It is unrealistic then to expect that despite the oversight on such matters as human rights by the EU, not all citizens in each member country will have access to the same processes of dispute resolution. To what extent this is true becomes a matter of careful research and comparison, coupled with interesting historical realities. To begin with, mediation and arbitration are two very different paradigms lumped together in people's minds because they are related within the broader field of alternate dispute resolution. With refinement and wide spread use of negotiating techniques (i.e., the advent of the ombudsman) it is assumed that either works toward the same goal: the redress of individual grievances resolved out of court. Given the laws of some nations, the United States for one, the use of binding arbitration allowed under law often supplants true mediation and because it is binding is often not true dispute resolution. As Oliver (2011) maintains, ‘The globalized use of binding arbitration [under the guise of ADR] will exhibit a clear and present danger to fundamental government principles of sovereignty and representational government’ 24 Cases cited include world trade agreements such as the Multi Lateral Agreement on Investment (MAI), where the final document, proposed by a panel of arbitrators hired by the International Chamber of Commerce, allowed investor signees to sue sovereign governments for behaviour that does not conform with strictures demanded by the [closed] arbitration. Under the guise of ADR [and sans ombudsman], citizens have no say in decisions made in secrecy by the very government officials they have elected. In essence, the arbitrated decisions here not only damaged the sovereignty of the governments themselves, but impeded the rights of citizens whom the government is bound to serve under democratic principles. The arbitrators, often untrained in the law and biased toward certain governments, take little heed of the laws of individual nations, as the nations ignore their own laws and standards in the interest of widening global economies and interests at the expense of individual citizens who are not represented. Moving to a more classic view of ADR as practiced within the concept and mechanisms of the ombudsman, the European Ombudsman, appointed under the Maastricht Treaty, was appointed ‘to reduce the democratic deficit in the EC [European Community] and allow individuals the opportunity ‘to voice complaints over EC governance’25 The challenges to government sovereignty in this situation are self evident and present unique issues for individual nations and their codes of law, particularly but not excusive to the area of human rights. In the UK, as a general statement, EU law takes precedence over UK law in most areas, a reality that has been criticized roundly by those who say the situation clearly contradicts the main principle of the UK constitution that Parliament is sovereign. Involvement of the EU Ombudsman in resolving cross border disputes is of particular relevance to issue of government sovereignty, since it may involve different laws and the willingness of courts in those countries to bend or set aside regulations or laws in the interests of resolving grievances lodged by the affected party or parties. While none of the resolutions can be forced upon EU member nations and their governments, pressure to negotiate claims as participants in the EU can be viewed as a challenge to sovereignty, particularly its judiciary, which in negotiating may set precedents it does not wish to follow as general policy. As fond of ADR as the British Parliament has become, and despite the government’s current push to encourage citizens to use the process in lieu of court actions, forcing parties into alternate dispute resolution practices is seen by some as breaching an individual’s right to fair trial under the EU Commission on Human Tights’ 26—an area where membership has its strongest and most anti-sovereign impact. Considering this then, national sovereignty then may be somewhat of an illusion given government sovereignty is hardly sacrosanct and has been many times ‘breached’ through internationally recognized, signed agreements 27 If this is the case, and over time the EU Ombudsman gains power, the concern may be valid the national identity must be affected and that even the laws of valid judicial branches may become secondary to interpretations made by The EU Court of Justice. McCormack (1999) disputes this notion as having any impact whatsoever on any area other than human rights. 28 Conclusion Considering the complex nature of ADR in its various forms the conclusion to be made is that the ombudsman working within the process is the single most independent and effective mediator of disputes between the individual and powerful institutions and entities. Any other form, while contributing to that cause, must be flawed for the reasons explored. Groups and appointed agencies tainted by the restraints of legal nuances and indirect negotiation can be considered “alternate” in dispute resolution only in the sense that they do not require court involvement and litigation; hardly can it be said that the primary interest of such alternatives provide the ultimate protection of the individual and satisfactory and effective means of grievance redress. Bibliography Abraham, A. (2011). ‘The Ombudsman as Part of the UK Constitution: A Contested Role’? Parliamentary Affairs, Vol 61 (1): p. 206-215. Retrieved online 22, January 2011 from: http://pa.oxfordjournals.org/content/61/1/206.full Bowman, S, Elliston, F.A. (1988). Ethics, Government, and Public Policy: A Reference Guide. New York: Greenwood Press. www.questia.com. Cadeddu, S. (2004). ‘The Proceedings of the European Ombudsman’. Law and Contemporary Problems,Vol. 68 (1): 161+ Retrieved 22 January, 2011 from: www.questia.com Europa Commission. (no date) ‘Helping Consumers Seek Redress: Alternative Dispute Resolution (ADR). Retrieved 22, January 2011 from: http://ec.europa.eu/consumers/redress/out_of_court/index_en.htm Loveland, I. (1995). A Special Relationship?American Influences on Public Law in the UK. Oxford: Clarendon Press. www.questia.com. Mackie, K. J. (1991) A Handbook of Dispute Resolution: ADR in Action. New York: Routledge. www.questia.com. MacCormick, N. (1999). Questioning Sovereignty: Law, State, and Nation in the European Commonwealth. Oxford: Oxford University Press. www.questia.com. Oliver, D. (2011) ‘Mediate Before You Litigate: Mediation/Alternative Dispute Resolution’ Retrieved 19 January, 2011 from: http://www.commonground- adr.org/newsarticles_details.php?id=3 Reif, L.C. (2000) The Ombudsman, Good Governance, and the International Human Rights System. Neatherlands: Martinus Nijhoff Publishers. Saleh, D.N. (2009).‘The Role of the Ombudsman’ The CPA Journal Online. Retrieved 20 January, 2010 from: http://www.nysscpa.org/cpajournal/2005/405/perspectives/p12.htm ‘The Danish Ombudsman: An Institution with Far-reaching Consequences’. (no date) Retrieved 22 January, 2011 from: http://www.um.dk/en/servicemenu/Publications/TheDanishOmbudsman.htm The International Franchise Association (IFA) Ombudsman Program (2002) ‘The Function and Role of Ombudsman’. Retrieved 20 January, 2011 from: http://www.ifaresolve.com/Function_role.htm Van Gerven, W. (2005). The European Union: A Polity of States and Peoples. 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