Mediator as Ombuds

by Chuck Doran

The word “ombudsman” comes from a Swedish term that dates back to 1809, when the Swedish parliament decided to protect citizens’ rights by establishing a supervisory agency independent of the government. Dictionaries differ about the word’s origin, but many in the field prefer one scholar’s definition of the ombuds (or ombudsperson) as “a person who has an ear to the people.”

Today, ombuds carry on this tradition by providing independent, impartial, informal, and confidential services to companies, universities, and governments throughout the world. In responding to inquiries and complaints, these “ears to the people” help ensure that every voice is heard without fear of reprisal, retaliation, or loss of privacy.

I’ve been mediating and training in the dispute resolution field since 1992, finding, like many others, great fulfillment and purpose in my work. While my devotion to mediation has grown in that time, I’ve found that working as an ombuds has allowed me to expand my skills in an entirely new and challenging way.

My work as an ombuds began in 1995, when I completed “Ombuds 101” (now called “Foundations of Organizational Ombuds Practice”) with the International Ombuds Association (IOA). The Foundations course gives academics, administrators, mediators, and others information on how to set up and execute an effective ombuds office. Since then, I have served as a “classical” ombuds and as chair of NE-ACR’s Ombuds Service, also as an outsourced “organizational” ombuds with a number of organizations in the US. I also became a Certified Organizational Ombuds Practitioner with the IOA in 2021.

Recognizing that consumers of mediation, arbitration, and other ADR processes had no way to register their concerns or complaints, I worked with Dina Eisenberg, Ros Cresswell, and others to establish an ombuds program within the New England Chapter of the Association for Conflict Resolution (NEACR) in 2005. As chair of that program, I functioned within a classical ombuds model, fielding complaints — about how an ADR process was managed by the provider, not about the outcome – from ADR consumers who are dissatisfied with the services of an ADR practitioner based in New England.

I also work as an outsourced organizational ombuds with a number of organizations throughout the US and the world, where my role is to surface and resolve work-related issues raised by employees. I’ll focus on my work as an outsourced organizational ombuds in this article.

Four principles govern my work as an organizational ombuds:

  • Independence. An ombuds is independent in structure, function, and appearance to the highest degree possible within the organization. Ombuds should not hold any other positions within the organization that  conflict with the independent nature of the function. As an outsourced ombuds, by definition, I am independent of the company. This outsider status helps to reassure visitors who are considering whether to reach out to the ombuds.
  • Impartiality. As a designated neutral, an ombuds represents no one and is committed to promoting fairness for everyone in the workplace. Although an ombuds does not serve as an advocate for any party to a dispute, s/he does advocate for fair processes. As a designated neutral, an ombuds avoids acting in a manner that might create a conflict of interest. In my work with companies, this means I walk a fine line between building trusting relationships with all employees and management while not appearing “too chummy” with either, such as eating lunch with one side in a public space at the company.
  • Informality. An ombuds focuses on alternative methods of resolving problems outside the established formal institutional processes. He or she does this in an informal, off-the-record manner by listening to employee concerns, helping employees identify their interests, providing information about company policies and procedures that apply to the employee’s situation, developing a range of options with the employee, connecting them with resources within the company, and making informal inquiries, with the employee’s permission. To ensure his or her role is informal, an ombuds will not participate in or conduct formal investigations or testify in any administrative or legal proceeding on behalf of an employee or on behalf of the company.
  • Confidentiality. All communications with an ombuds are considered confidential. The only exception to this commitment is where there appears to be an imminent risk of serious harm to the employee or to another person at the company. Organizational ombuds promise not to divulge the identities of the visitors who use the ombuds function. This confidentiality works two ways: as a matter of policy, a company cannot call the ombuds to disclose confidential communications or serve as a witness, and employees who consult an ombuds agree not to ask him or her to testify about anything said or written in confidence. Because of the confidential, impartial, informal, and independent nature of the ombuds’ role, communication with the ombuds does not constitute notice to the company. Despite these limitations, an organizational ombuds isn’t a quiet, confidential dead-end street for employees’ complaints and concerns. While protecting individuals’ privacy and honoring the confidentiality of all their communications, ombuds provide reports to senior management about general trends, employees’ concerns, and suggested systemic improvements for the organization.

For employees, the benefits are many. Companies with organizational ombuds report that their workers appreciate having a confidential, company-sanctioned avenue to express concerns, review policies, explore options, and resolve conflicts. The ombuds’ adherence to strict confidentiality helps ease employees’ fear of retaliation, and the informality of the process, literally and figuratively, that is separate from corporate rules and structures, can encourage people to work through their concerns early on, before conflicts escalate into formal complaints against another employee or the employer.

Management also benefits from the ombuds’ regular direct reports about issues and trends, reports that provide an opportunity to address these worries early and often, before they hurt productivity, lower morale, or fester into a lawsuit. Having an established, confidential, and anonymous function also helps businesses comply with requirements outlined in the Sarbanes-Oxley Act, the US Sentencing Guidelines, and other rules that require companies to provide confidential and independent channels for employees to express concerns.

Download MWI’s Free Article:  What to Consider When Selecting an Ombuds

There are two primary types of organizational ombuds – in-house and outsourced. In-house ombuds are usually full-time employees who run an independent office within a company. They are often selected from within the company because they’re familiar with the corporate culture and generally viewed by employees and management as knowledgeable, approachable, and trustworthy. If an in-house ombuds is part time and performs another job for the company, the other role must not compromise the independence, impartiality, confidentiality, or informality of the ombuds role. IOA’s Standards of Practice state that an in-house ombuds cannot also have a role “that compromises, or could be reasonably perceived as compromising, the Ombuds’ independence. If the Ombuds has non-ombuds duties, those duties must not interfere with their ombuds duties. The Ombuds must clearly communicate when they are and are not acting as the Ombuds.” (Independence 2.4)

Outsourced ombuds bring a different set of skills to the function, which often includes ADR experience, true independence, and process expertise. I have found that not being “an insider” is both an advantage and a challenge that informs my approach as a practitioner, and that is one of curiosity about the company – its people, history, norms, and culture. My experience as a professional mediator and trainer also brings credibility and skills that I use regularly.

Mediators looking to make a living in this field may be interested to know that today there are more, and usually more long-lasting, job opportunities for ombuds than for mediators.  This is due, in part, to the fact that while most mediations are short-term, goal-oriented processes, the work of an organizational ombuds can stretch over many years, as the ombuds learns to understand a corporation’s culture and builds long-term trustful relationships with both managers and employees.

For mediators considering ombuds work, I suggest researching the role thoroughly and taking time to meet with in-house and outsourced ombuds at companies, universities, and governmental agencies. I’ve found that two things are true with most of the ombuds I know – one, they eat lunch on most days and two, they are willing to talk with aspiring practitioners about their work (over lunch). I also suggest joining the International Ombuds Association (http://www.ombudsassociation.org), taking IOA’s Foundations of Organizational Ombuds Practice, and checking online resources, including Tom Kosakowski’s blog, (www.ombuds-blog.blogspot.com), that provide current and future ombuds with up-to-date information.

Chuck Doran is a mediator, Certified Organizational Ombuds Practitioner (CO-OP), and the founder of MWI in Boston. He can be reached at cdoran@mwi.org.