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Mediator as Ombudsman

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 ombudsman (or ombuds or ombudsperson) as “a person who has an ear to the people.”

Today, ombudsmen (recognized by the International Ombudsman Association as a gender-neutral label) carry on this tradition by providing independent, impartial, 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 conflict resolution for over 25 years, 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 ombudsman has allowed me to expand my mediation skills in an entirely new and challenging way.

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My work as an ombudsman began in 1995, when I completed “Ombuds 101” with the International Ombudsman Association. Ombuds 101 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” ombudsman as chair of NE-ACR’s Ombudsman Service and as an external “organizational” ombudsman with a private company in Boston.

While Wikipedia may not always be a perfect source of information, the online free encyclopedia offers the following helpful description of the two ombuds models, classical and organizational. “The organizational ombudsman role has evolved from ‘classical’ ombudsman roots,” the website says. “The classical ombudsman appeared in Sweden in the early 1800s as an independent high-level public official responsible to the parliament or legislature and appointed by constitutional or legislative provisions to monitor the administrative activities of government. It is, however, also the case that the organizational ombudsman role has been frequently been “re-invented” by employers who did not know of the classical ombudsman but valued the attributes of the (function).  The concept has been widely implemented and has been spread around the globe.”

Recognizing that consumers of mediation, arbitration, and other ADR processes had no way to register their concerns or complaints, I worked with Dina Lynch Eisenberg and others to establish NEACR’s Ombudsman Program in 2005. As chair of that program, I function 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 worked as an external organizational ombudsman with a national company based in Boston, where my task is to surface and resolve work-related issues for more than 800 employees. I’ll focus on my work as an organizational ombuds in this article.

Four principles govern my work as an organizational ombuds:

  • Neutrality. As a designated neutral, an ombuds represents no one and represents everyone in the organization equally while upholding a commitment to fairness in the workplace. Although an ombuds does not serve as an advocate for any party to a dispute, he or she 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 the Boston company, 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 ombudsman 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, and making informal inquiries, always 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 proceedings on behalf of an employee or on behalf of the company.
  • Independence. An ombuds is independent in structure, function, and appearance to the highest degree possible within the company. By definition and in practice, an ombuds cannot be part of any other department at the company. One very visible example of this is the fact that all my meetings with employees and management are by appointment, and I do not have an office at the company. One key benefit of this setup is that employees who meet with me do so in private, without advertising the fact to coworkers and supervisors.
  • 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 ombudsmen promise not to divulge the source of any communication, even if that means not keeping records and identifying information of visitors. 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 ombudsman agree not to ask him or her to testify about anything said or written in confidence. Because of the confidential, neutral, informal, and independent nature of the ombuds’ role, communication with the ombudsman does not constitute notice to the company. But the 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 and employees’ concerns in the workplace.

For employees, the benefits are many. Companies with organizational ombudsmen 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 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 – internal and external. Internal 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 internal ombuds is part time and performs another job for the company, the other role must not compromise the independence, neutrality, confidentiality, or informality of the ombuds role. IOA’s bylaws and membership form state that an internal ombudsman cannot also have a role “which would make him or her an agent of the organization for the purposes of notice.”

External 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 ombudsmen than for mediators.  This is due, in large 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, trusting relationships with both managers and employees.

For mediators considering ombuds work, I suggest researching the role thoroughly and taking time to meet with internal and external ombuds at companies, universities, and governmental agencies. I’ve found that two things are true with most of the ombuds I know 1.) they eat lunch every day and 2.) they are willing to talk with aspiring practitioners about their work (over lunch). I also suggest joining the International Ombudsman Association (http://www.ombudsassociation.org), taking Ombuds 101, and checking online resources, including Tom Kosakowski’s blog, (www.ombuds-blog.blogspot.com), that provide current and future practitioners with up-to-date information.

Chuck Doran is a mediator, ombudsman, and the founder of MWI in Boston. He can be reached at cdoran@mwi.org or 617-895-4026.

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