The Ombudsman's Role in a dispute Resolution System
Among the alternative dispute resolution procedures in the American legal system stands Institute of the Ombudsman. This institution is well known and has its own niche in the international legal theory. It is a generalized notion of a special service, or position of the person who deals with complaints of citizens and resolves conflicts in public administration system. Traditionally the Ombudsman deals with constitutional and administrative law, but in the USA the institution is also considered to be an element not only of public but also a private law now. According to public relations, the Ombudsman is one of the non-judicial forms of democratic control over the executive authorities in order to protect the rights of citizens from arbitrary action by officials. In private law sense, the Ombudsman is understood as a special form of settlement of disputes in various spheres.
The term "ombudsman" (ombuds or omdudsperson) came from Scandinavia and was originally translated as "parliamentary commissioner". But later, due to inadequacy of translation, has been borrowed totally (Rowat. p.2). The official founder of the Ombudsman is Sweden (1809), but later the idea of an ombudsman was spread throughout the world.
The borrowed Scandinavian model, took its own way of further development and differentiation in the U.S. The establishment of an ombudsman in the United States got an active public support.
To ensure interaction between ombudsmen offices around the country, sharing experiences, in educational and scientific purposes there was formed The United States Association of Ombudsman in 1977. The first result of its work was the creation of standards of the classical Ombudsman. According to them, the Ombudsman is an office or service or an independent person authorized to review citizens' complaints against governmental agencies or officials, to investigate, publish the results and make recommendations as to elimination of violations (Guillot. P. 177).
The introduction of the classical ombudsman in the U.S. was accompanied by its gradual transformation. Nowadays, the classical idea of an ombudsman has lost its popularity in the United States, but there are appearing new services which are called kvaziombudsmen. They to some extent remain similar to the classical Ombudsman, but at the same time have their own characteristics.
The closest to the classical type is an executive ombudsman. His duties are to monitor the activities of the administration of state, district or city in general or of some specific spheres of its activity: correctional institutions, health care, education, business, etc.
In addition to public-law relations, kvaziombudsmen is spread in the private sphere of legal regulation. Its varieties are so-called corporate or organizational ombudsmen.
Organizational ombudsmen are created in various institutions, corporations. They represent the internal structural unit installed in order to settlement organizational conflicts, particularly between the employer and employees, between administrators and subordinates, between employees.
The concept of corporate ombudsman has developed in parallel with the U.S. private system of alternative dispute resolution and under the influence of the increasing bureaucratization of management within corporations. The organizational ombudsman is understood as a mean of alternative dispute resolution with substantial specificity.
The specific feature of corporate ombudsman is that it should balance between independence and cooperation, take into account the interests of both parties and, therefore, to know the essence and not only the nature of individual conflicts, but also be well aware of the specifics and dynamics of organizational data management structures. Thus, the ombudsman at the company operates as a professional in conflict resolution and as a specialist in organizational management (Waxman. p.22).
The advantages of such a transformed institution of the Ombudsman consist in the fact that it represents a certain compromise, corresponding to the interests of the corporation and its employees. For the company it means: the possibility of self-regulation, self-correction of internal activities; identification of those areas that produce more conflicts, problems, complaints; recommendations for resolving and preventing the conflicts. The role of ombudsman is significant, because his activities eliminate the possible lawsuits, "does not wash dirty linen in public" and save the business reputation of a company. For employees the institute of ombudsman is also important, because it provides an opportunity to make complaints, statements, offers not the administration, but to an independent, neutral person who has the power to investigate and give recommendations to the appropriate officials to resolve conflicts.
Due to the advantages the corporate office of the Ombudsman now operates approximately 500 major American corporations. Among them: General Electric, Control Data, Federal Express, IBM, American Ortical Company, AT & T, Information Systems, Bank of America, Washington Post and many others (Rowe. p.53).
Usually, the corporate ombudsman is established in two main forms: to resolve internal conflicts, with the participation of workers and managerial staff of the organization and to resolve external disputes involving consumers (customers or clients).
Thus, the institution of ombudsman has a rather broad scope. With the help of it, all disputes arising out of administrative, civil, labor and other legal relations are resolved. The main task of the Ombudsman is to prevent lawsuits. According to statistics, on average, the Ombudsman solves 200-300 cases per year (Marty. p.2).
There are a number of common features that characterize the internal system for resolving differences with the help of ombudsmena. So, the office of the Ombudsman is a formal structure that occupies a definite place and is accepted by all members of the organization, because it is supported by senior management. Ombudsman serves as a source of information for the management of emerging problems and conflicts at all levels of organizational management. It provides the necessary evidence for correcting deficiencies and irregularities in the work. It also promotes the experience of the world conflict resolution among members of the organization. The ombudsman service is accessible for any member of the organization, regardless of the nature of the work or the level of the position, because it is suitable for solving problems of any kind. The service is an alternative and does not preclude the use of judicial or other forms of non-judicial dispute settlement procedures. It provides a solution of the conflict through a neutral third person who has the right entry into the structure of any level and has an experience of negotiating. One of the main qualities of ombudsman is that his work guarantees the individual a confidential settlement of the conflict.
The peculiarity of the Ombudsman in organizations is the informality of his activities. Settlement of the dispute is determined by the Ombudsman in each case and has no procedural rules. It is specific for each case.
An appeal to the Ombudsman should be based on the application. After that the ombudsman starts an investigation. According to the results of the investigation the Ombudsman makes recommendations to resolve the dispute, or lobbying for a definite decision to change the overall policies of the firm management.
One another kind of American ombudsman service deserves attention. This service is created in universities and is called The University of Campus Ombudsman.
The university ombudsmen were established in late 1960 in response to the massive student unrest and protests against the bureaucratization of the university administration and weaknesses in higher education. Originally the offices of ombudsmen intended to work with complaints of students, protecting their rights and improve conditions for obtaining higher education. It serves for resolving the misunderstanding conflicts not only with students but also with the participation of faculty and staff. Such a big system as the university has an infinite number of internal conflicts. Ombudsman in the system is a safe mechanism to combat the problems (Rowat. p. 156).
This position of ombudsman is well paid and occupied by a specialist who is knowledgeable in university affairs and focused on the peaceful settlement of conflicts.
The specificity of the development of Ombudsman services in the United States, the existence of its various forms, the diversity of practices have led to the need of uniformity of this institution, a common understanding of its essence. In 1999, the American Bar Association has formed subcommittees to develop national scale parameters for the Ombudsman. As a result of its work the ombudsman was defined as an independent, impartial person who holds a senior position, who is authorized to receive and confidentially investigate complaints and statements that are related to rights violations or misconduct by the Administration, officials or others. Based on received complaints, statements or own initiative, the Ombudsman investigates and studies the case and takes action to resolve specific differences or makes recommendations for solving the broader issues (Gadlin. pp. 45-48).
American Experience of the Ombudsman shows that ombudsman plays a significant role in modern society and that this institution can be used not only as a democratic form of non-judicial control over the activities of government organizations, but also as an alternative mean of conflict resolution, that helps to prevent legal conflicts, reduce the number of appeals to the courts, as well as to solving intra-corporate non-legal issues: the institutional, technical, social, psychological.
Gadlin, H. The Ombudsman: What's in a Name // Negotiation Journal. January 2000. Vol. 16. № 1. pp. 45—48.
Guillot, B. The United States Association of Ombudsman // International Handbook of the Ombudsman: Country Surveys. Greenwood Press. V. 1. 1983. p. 177.
1 Rowat, D. The Ombudsman Plan. McClelland and Stewart Limited. 1973. p.2.
Marty, C., Carman, V. McDonell Douglas Corporation // Ohio State Journal on Dispute Resolution. 1997. Westlaw. Law Reviews. Bar Journals and Legal Periodicals. p. 2.
Rowe, M. The Ombudsman's Role in a Dispute Resolution System // Negotiation Journal. October. 1991. № 7. P. 353; Stieber C. 57 Varieties: Has the Ombudsman Concept Become Diluted? // Negotiation Journal. January 2000. Vol. 16. № 1. p. 53.
Rowat, D., Wallace, G. The Campus Ombudsman in North America / International Handbook of the Ombudsman: Country Surveys. Greenwood Press. V. 1. 1983. p. 156.
Waxman, E., Gadlin, H. An Ombudsman Serveys as a Buffer Between and Among Individuals and Large Institutions // Dispute Resolution Magazine. Summer 1998. p. 22.