Reframing mediation’s values in citizen-state disputes

Anni Albers

South of the Border, 1958. Anni Albers. (photo by Margaret Doyle)

I mediate in disputes between families and schools and local authorities involving support for special educational needs and disabilities (SEND). This falls within the arena of administrative justice – the interactions between individuals and communities and state institutions – and in this context of citizen grievance (‘citizen’ referring to anyone subject to decision-making by the state), mediation is not a cheap and fast alternative to litigation. To portray it as such diminishes the promise that mediation holds to humanise state bureaucracy and reposition the citizen-state relationship as one of mutual and shared rights and obligations. In this context, rather than a focus on settlement, mediation’s values should be underpinned by reciprocity and recognition, and linked closely with the ways that we embed social rights in our everyday interactions.

Far from celebrating the alternative mechanisms for giving force to social rights, such as mediation and the ombud, advocates of social rights have often lamented the lack of legal enforcement and argued for ways of making social rights justiciable in the courts. Even when the desirability of process pluralism is accepted (a ‘horses for courses’ approach promoted by the Administrative Justice and Tribunals Council (AJTC 2010)), priority has been given to the courts as the leading protagonist in any future partnership of relevant agencies. Mediation and other informal mechanisms have as a result found themselves relegated to the margins as a means of providing effective accountability for social rights violations.

This is one of the premises of our book, Reimagining Administrative Justice: Human rights in small places (Palgrave 2019), in which my co-author Nick O’Brien and I propose a realignment of administrative justice and human rights, and specifically social rights, as a means of fostering more sustainable and democratic responses to citizen grievance. I am a mediator; he is a tribunal judge. Together we see what increasingly resembles a busy assembly line of complaints and appeals that is costly in human and financial terms without evidence of sustainable improvement. We consider how mediators, ombuds and tribunals can work in a complementary, not competitive, way to support democratic accountability.

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New orthodoxies

In the book, we challenge the orthodoxies of administrative justice that prioritise the individual user, a well-oiled system, and closure by ‘resolution’.

The individual user has become sacrosanct in debates about the design of administrative justice. Reflecting the consumerist ambition that the point of reference is the individual ‘user’ of any service and that ‘user friendliness’ is the ultimate aim, proposals for redesign of administrative justice assume that any response to citizen grievance should be judged by how effectively it offers ‘user satisfaction’, whether in accessing a tribunal, mediator or ombud. Yet there are grounds for scepticism about this assumption, not because the user is unimportant but because the true identity of ‘the user’ is frequently contested, rarely simple, and never a matter of purely individual choice, divorced from all social and shared need.

Policy makers and academics often observe that, in contrast to the criminal justice, family justice or civil justice systems, the administrative justice system does not as yet exist, and moreover that this is a bad thing. This observation assumes the desirability of making administrative justice more ‘systematic’, in the sense of more clearly structured and bounded, with practice and process more uniformly prescribed and co-ordinated. This striving for systematisation, for consistency and certainty, looks dubious as an overarching strategy, not least because it fails to take account of the unavoidability of uncertainty and the need to remain ‘agile’ in the face of an unpredictable future. Too much ‘system’ can lead to precisely the uniformity, bureaucracy and inflexibility that administrative justice has always aspired to counter. We suggest recasting administrative justice as less of a system and more of a woven fabric, to look for what Bauhaus weaver Anni Albers described in 1958 as the ‘interdependent threads’ that, when connected, ‘form a cohesive and flexible whole’ (Albers 1965).

And finally, the emphasis on individual redress has reinforced the expectation that any serious attempt to respond to citizen grievance must aim for finality and ‘closure’. Even if the outcome is one of disappointment for the individual complainant, at least the administrative justice process will have brought things to an end, achieved closure and allowed for business to resume. To design for closure, however, is to design for resignation, for the acceptance of limit and definition, for boundary and exclusivity. The ability of administrative justice to engage in iterative practices, deliver provisional outcomes, and enable future creative participation, albeit under the shadow of inevitable uncertainty, is seriously constrained by such an ambition.

Design theory and the ‘problem in relationships’

In proposing the alternative orthodoxies of community rather than individual user, of a network rather than system, and of openness rather than closure, we explored design culture as a source of new ideas. Design theory has begun to feature in discussions about the future of administrative justice, and the prospects of a ‘digital by default’ future require us to reflect on what design might mean for administrative justice and for the fabric of the justice system more generally. The trajectory of design culture in the past 75 years and its own entanglements with democratic values, individualism and the marketplace illustrate how design has been subjected to similar pressures as those exerted on administrative justice and human rights. Innovative and progressive solutions have emerged in design culture, and part of the purpose of this book is to explore the resonance between ideas in design culture and the reconnection of human rights with administrative justice as proponents of a reinvigorated democracy. It is in the design of the public realm, in urban planning and housing development that the values that can shape a reinvigorated democracy become most clearly visible and in which the possibilities for administrative justice and human rights emerge most clearly.

Lack of trust is often cited as being at the core of the problematic citizen-state relationship. That lack of trust works both ways – not only in how the citizen views the state but how state institutions view the citizen. As political theorist Danielle Allen has noted, ‘citizenship is not, fundamentally, a matter of institutional duties but of how one learns to negotiate loss and reciprocity. … unrestrained self-interest does not make the world go round but corrodes the bases of trust’ (Allen 2004:165).

Where does mediation fit into this? We argue that mediation plays an unheralded role in this reshaping of the citizen-state relationship. That relationship is often characterised as one bounded by the constraints of standardised, faceless bureaucracy – but that bureaucracy is the frontier where the citizen meets the state and feels its texture. The problem in bureaucracy is, in turn, a problem in relationships. Human rights and administrative justice are, in their different ways and common origins, both means of humanising those relationships and investing them with democratic credibility.

Our book explores mediation techniques and their potential place as part of a networked and loosely woven administrative justice fabric. The use of the senses is important – looking, listening, even touching, where that suggests a lingering feeling of empathy, of common humanity inherent in an ethic of care approach that recognises the interdependence of citizen-state relationships. Mediation and other so-called extrajudicial institutions of administrative justice are not about policing bad behaviour but about promoting good behaviour on behalf of the community, including good administration. They are therefore well suited to restoring the humanity in bureaucracy, to ensuring that the way we touch the state, and it touches us, is constructive, not destructive.

Mediation as ‘appropriate alternative’ or ‘collaborative complement’?

Two areas in particular illustrate the need for a model that embraces democratic participation and the relaxing of confidentiality rules: planning and development, and special educational needs and disabilities. In both contexts, at least one of the parties is a public authority with requirements to report (to auditors, for example) or to answer to democratically elected representatives (local authority councillors, for example), and both involve consideration of wider community interests (CEDR 2003). Therefore, it may be both undesirable and unfeasible to impose confidentiality on mediation of public sector cases, including but not only multi-party public policy disputes. Critiques of claims for mediation’s advantages of speed, low-cost, and informality are justifiable (Pearce and Stubbs 2000; Bondy, Doyle, Reid 2005), but in a public-interest context it is the promised multi-interest engagement that is more interesting to explore – its added value more than its alleged proportionality.

In the book we examine special educational needs and disabilities (SEND) in England as a case study to highlight mediation’s potential to contribute to the democratic accountability work of administrative justice. In 2018, 3,200 SEND mediations were conducted. This is a complex and multi-faceted landscape, with a range of complaint mechanisms for different types of disputes operated by different public bodies and private actors (schools, local authorities, Secretary of State, the NHS, Ofsted, the SEND Tribunal, SEND-accredited mediators, the Local Government and Social Care Ombudsman, judicial review). It is an area rich with the polycentricity of disputes, with their overlapping web of perspectives, and alive to the tension between individual and collective rights.

In the SEND context the impetus for mediation is usually a challenge to a specific local authority decision that can be appealed to the Tribunal, but in reality the mediation encompasses a multiplicity of issues that go beyond the grounds for appeal, reflecting the ongoing relationship between families and schools and local government. It is not only the interests and needs of the parties attending that have to be taken into account. Collective interests are inherent in the duties that local authority SEND teams have for accounting for use of public funds, in schools’ needs to be supported, and in the needs of all pupils in the community to have access to inclusive education. Mediation as a means of democratic co-design offers the promise of addressing both individual and collective needs; it is essentially about connection, and it embraces conflict as a positive force for change. In that way, it allows for many voices and lends itself to the polycentric nature of SEND disputes.

The ‘sensibility’ of mediation

The ability of mediation to accommodate many voices and issues gives it a distinct texture or ‘sensibility’ that can complement more determinative grievance mechanisms. Mediation works in tandem with tribunals, as in the SEND context, and with the ombud; disputes can be mediated before or even after an ombud investigation, for example (LGSCO 2017:7; OIA 2013). It can also function as a complement to judicial review and the Court of Protection, often in complex cases in which disability rights are at the core (Bondy and Doyle 2011; May 2017).

More often, however, mediation has been presented as an alternative, not a complement, to more formal legal processes and even as an answer to the perceived problems besetting the courts, ‘gridlocked with competing sides or overworked with too-big-to-handle dockets’ (Menkel-Meadow 2002:53-54). Government policy, from Lord Woolf’s Access to Justice report in 1996 through to ‘proportionate dispute resolution’ as advocated in the 2004 White Paper, the 2007 Act, and the 2016 Transforming Our Justice System paper, has set out to promote mediation and other informal mechanisms of resolution as an answer to the perceived ‘problem’ of overcrowding in, and lack of access to, the formal justice system. What is needed, however, is a shift away from an emphasis on proportionate and fast toward an integrated network of complementary approaches that can accommodate the looseness that enables mediation to be more than about resolution or settlement. As we write in Reimagining Administrative Justice, this shift does not prioritise cost and speed; instead it prioritises principles of openness and community interest that are compatible with fostering democratic engagement and accountability, mutualism and difference.

These principles resonate with what has been called the transformative dimension of mediation, linked to ‘an emerging new vision of self and society, one based on relational connection and understanding rather than on individual autonomy alone’ (Bush and Folger 2005:23-24). This reflects a shift from an individualistic vision to a relational and interactive one, bringing individual freedoms together with social conscience. Settlement-oriented behaviour by mediators (often encouraged not only by policy imperatives but by codes of conduct and practice standards) is linked to a wider issue of ‘conflict control’ and to the fundamentally pessimistic ideology identified by Bush and Folger that holds that because human beings are ‘incapable of engaging with one another without destructive consequences’, social interaction is a destructive force (Bush and Folger 2005:247).

If this seems over-dramatic, consider the language used in some descriptions of the mediator’s role – to ‘control’ the process, ‘manage’ emotions, helping people to move away from ‘unreasonable’ positions – and some techniques, including keeping parties apart in caucus sessions, coercion and even bullying by mediators (Genn et al 2007; Enterkin and Sefton 2006). Mediation is not about neutrality, contrary to popular belief, nor is it about managing or controlling conflict. Concerns about the dangers of interaction are rooted in the view that individuals are driven by desire of fulfilment and that interaction must be limited and controlled so it meets that need but does not spill over into conflict, which is something to be managed in what is called ‘conflict control’. A ‘conflict-control’ model relies on a deficit view of human capacity linked to an ‘ideology of individualism’ and a notion that social interaction should be ‘tolerated but watched carefully’ (Bush and Folger 2005:245).

New priorities

I’m not against settlement or resolution. In many contexts it is what parties want and is an acceptable ambition. In the spaces of citizen grievance and public administration, however, rather than measuring the success of mediation by the number of settlements achieved, we should be aiming for mediation to be measured in terms of sustainability – whether it offers an alternative to the assembly line of complaints and appeals that the administrative justice ‘system’ increasingly resembles. Sustainable outcomes are possible when the interaction between people in conflict is open, iterative and deliberative, not funneled toward settlement.

Mediator and academic Carrie Menkel-Meadow suggests that mediators are reshaping the processes they use to move away from a focus on resolution and ‘right answers’ to focus on the ‘sensibility’ of mediation, one that adopts a feminist emphasis on needs and that prioritises empathy and listening rather than closure. She writes of what she considers to be ‘mediation values’ – reconciliation, listening, storytelling, empathy, understanding, accountability and apology, if not forgiveness – being used in both large and small arenas, including in human rights claims and in controversial community-wide issues. One such arena is SEND, which entails social rights and state decision-making and must accommodate often competing collective and individual needs, and in which such a reshaping is necessary.

Mediation in this sense is therefore more than mere dispute resolution or the creation of a safe space for negotiated justice. It becomes instead a technique for allowing citizens’ voices to be heard, for constructing bridge-building dialogue and for the restoration of relationships that are public and institutional rather than private and personal.

References:

Administrative Justice and Tribunals Council (AJTC) (2010). Principles of Administrative Justice. London: AJTC.

Albers, A (1965). On Weaving. Middletown, CT: Wesleyan University Press.

Allen, D (2004). Talking to Strangers: Anxieties of Citizenship since Brown v. Board of Education. Chicago: University of Chicago Press.

Bondy, V and Doyle, M (2011). Mediation in Judicial Review: A practical handbook for lawyers. London: Public Law Project.

Bondy, V, Doyle, M and Reid, V (2005). Mediation and Judicial Review – Mind the Research Gap. Judicial Review 10(3), 220-226.

Bush, RAB and Folger, JP (2005). The Promise of Mediation: The Transformative Approach to Conflict. San Francisco: Jossey-Bass.

Centre for Effective Dispute Resolution (CEDR) (2003). ADR for public authorities: A guide for managers. London: CEDR.

Enterkin, J and Sefton, M (2006). A report on the Exeter Small Claims Mediation Pilot. DCA Research Series 10/06. London: Department for Constitutional Affairs.

Genn, H et al (2007). Twisting arms: court referred and court linked mediation under judicial pressure. Research Series 1/07. London: Ministry of Justice.

Local Government and Social Care Ombudsman (LGSCO) (2017). Education, Health and Care Plans: Our first 100 investigations. London: LGSCO.

May, C (2015). Mediating Court of Protection cases – Summary of research. UK Administrative Justice Institute (UKAJI) blog.

Menkel-Meadow, C (2002). When Litigation Is Not the Only Way: Consensus Building and Mediation As Public Interest Lawyering. Washington University Journal of Law and Policy 10, 37-62.

National Audit Office (2018). Handling of the Windrush situation. HC 1622 Session 2017–2019. London: National Audit Office.

Office of the Independent Adjudicator (OIA) (2013). Mediation – a guide for students. Reading: OIA.

Pearce, B and Stubbs, M (2000). The role of mediation in the settlement of planning disputes at appeal: the debate and research agenda. Environment and Planning 32, 1335-1358.

 


Can kindness shape a new citizen-state relationship? A word with The Man in Black

Does kindness have the potential to shape how the state and public services treat individuals, and how individuals experience public services? Research by Carnegie UK Trust argues that it not only has the potential to do so, but it must. The implications for administrative justice could be significant, but there are obstacles to overcome – not least the sense that kindness is an unaffordable luxury in times of austerity.

Country music often gets a bad rap as sentimental and depressing. What isn’t usually recognised is that the best of country music evokes a deep emotional attachment wrapped in disappointment and loosely threaded with optimism. It is the Nashville version of the current zeitgeist pleading for a reshaping of the relationship between citizen and state, a radical reimagining that places responsiveness, empathy, and social rights at the very heart of administrative justice.

Empathy and responsiveness have long been at the heart of mediation practice, but now this plea is being made powerfully also among ombuds and the wider administrative justice world as a necessary response to a distinct lack of empathy in the way citizens experience the state. At the Ombudsman Association conference in Belfast in May 2019, Jennifer Wallace from Carnegie UK Trust reported on an investigation carried out by Carnegie Fellow Julia Unwin into kindness in public policy. The report, Kindness, emotions and human relationships: The blind spot in public policy, argues for new thinking about why kindness matters and why we need to address the cynicism that is one of the typical responses to a call for emotions and relationships to play a prominent role in public policy. Building kindness into the citizen-state relationship, and addressing unkind systems, is a radical act, not a sentimental tug on the heartstrings.

The kindness that Unwin’s report explores incorporates emotions, relational care and attention to the way people feel about public services. It builds solidarity, fostering mutuality. It is radical, disruptive, messy. It is not about pity, about fostering a reduced demand for state services, or about ‘random acts of quixotic generosity’.

The urgency of kindness in public policy

Unwin identifies three key drivers in public policy that make the role of kindness an urgent and important matter: austerity is one, exerting pressures on those delivering public services. The other two are related to technology – tech to manage information (eg big data) and tech for managing communication (eg social media). One of her conclusions is that artificial intelligence (AI), as it continues to be rolled out across the public sector in decision-making, will be ‘deeply damaging’ if not met with a prioritisation of emotional intelligence.

There is a need to be bilingual, Unwin writes – to speak both the ‘rational’ language of policy (fair, transparent, evidence-based, systematic) and the ‘relational’ language of emotion (responsive, human, personalised). (At the conference, Wallace gave the example of ‘social capital’ versus ‘friends’ as an illustration of the divide between the lexicons.) Each of these languages on its own has a ‘shadow side’: ‘rational’ language, on the one hand, can prioritise predictability and the use of transactional measures to demonstrate impact and value for money (eg the 10-minute visit from the carer); ‘relational’ language can foster abuse and unfairness when access and ‘voice’ are not uniformly distributed (eg the loudest and most vitriolic Twitter user).

Pressures on kindness include an audit culture of measurability and an emphasis on professionalism. In administrative justice, the predominance of values of efficiency, effectiveness and value for money reflects rational language at the expense of relational language. In the ombuds world, also, these values hold dangerous sway, as does the move towards professionalisation. Introducing the language of emotion and relationships would be a welcome move if it makes the work of case handlers more meaningful and the experience of state decision-making more humane – for example, by allowing case handlers and frontline officials greater autonomy to be authentic in their exchanges with members of the public, by not speaking to a script, and by rewarding emotional intelligence rather than privileging efficiency, as current management models do.

Unwin points out that we often assume that kindness can’t be measured, when instead we choose not to measure it. But there is an inevitable tension between fairness and kindness, a challenge in administrative justice if a shift towards responsive kindness prioritises the individual (and her rights and feelings) over the collective public interest in fairness. That perception of fairness, however – of fairness as a fundamental value of administrative justice – implies there is a shared understanding of what fairness is and a misunderstanding of the ways it can foster inequalities. As Unwin writes, ‘To imply that consistency guarantees the fairest response ignores … the massive inequalities of voice and agency’.

Challenging the grip of austerity

The implications for administrative justice of a ‘kindness drive’ could be significant, but there are obstacles to overcome – not least the sense that kindness is an unaffordable luxury in times of austerity. But austerity’s grip should not remain unchallenged, and powerful arguments have been made (by UN rapporteurs past and present) that austerity is a political choice, not a necessity, and that by embedding social rights into accountability mechanisms, including ombuds, we might repair the social contract that a decade of austerity has broken.

Unwin argues that what’s needed is a shift in power that will lead to an increase in trust in government and institutions. Such a shift arises from a new social contract, one that recognises both individual capabilities and interests as well as those that are shared and that invests in human relationships rather than key performance measures. In this, Unwin shares a vision set out starkly by Philip Alston, UN Special Rapporteur on extreme poverty and human rights, in his report to the UN on poverty in the UK. Alston notes that ‘much of the glue that has held British society together since the Second World War has been deliberately removed and replaced with a harsh and uncaring ethos’ as successive governments have pursued the ideological agenda of austerity. In the face of the erosion of the post-war social contract in Britain, there are elements of optimism, particularly in the way kindness is incorporated into legislation by devolved administrations in the UK trying to mitigate the worst impacts of austerity.

Legislative recognition of social rights should be a part of this reimagining of the citizen-state relationship, Alston argues, echoing a call made by Paul Hunt, Chief Human Rights Commissioner, New Zealand and formerly UN Special Rapporteur on the Right to Health, for a sectoral approach to embedding social rights. In a recent Political Quarterly article, Hunt suggests that a realistic approach is to engage with the everyday places of housing, schools, hospitals and ‘to clothe each explicit social right with sectoral law, policy and practice’ – embedding, for example, the right to adequate housing into legislation and in statutory guidance, developed through a bottom-up and participatory process, and in policy-making, inspection and adjudication (which would include the practices of ombuds). This sectoral approach could be reinforced by recasting accountability as a loosely linked network of sectoral institutions that together work to monitor, review and take remedial action on social rights.

Walking the line

Amid the pessimism, there is inspiration to be found for ombuds, mediators and others involved in addressing citizen grievance. There is also inspiration for researchers who are interested in exploring the role of emotions in the delivery of public services, in state administration, and in the mechanisms for holding the administration to account. It isn’t a path of sunshine and rainbows, and it has its dark side, but we could perhaps channel our inner Johnny Cash to walk the emotionally intelligent line between optimism and despair:

Well, there’s things that never will be right I know

 


Making rights worth having: the report of the Lords Select Committee on the Equality Act 2010 and Disability

 

 

 

‘We recommend restoring the Equality and Human Rights Commission’s power to arrange the provision of conciliation services for non-employment discrimination claims. The service specification should provide for a range of delivery methods to ensure it is accessible, including provision of face-to-face conciliation, and the service should take direct referrals from the Equality Advisory and Support Service or its replacement.’

Equality Act

Last month the House of Lords Select Committee on the Equality Act 2010 and Disability reported on its inquiry into the Act and concluded that government inaction is failing disabled people. The inquiry, which started in June 2015, received 144 responses to its Call for Evidence and heard oral evidence from 53 witnesses. The published report sets out the committee’s conclusions on a range of issues including the Public Sector Equality Duty, reasonable adjustments, access to services in transport, housing, and leisure facilities, and enforcement and access to justice. It highlights the barriers to challenging disability discrimination in terms of cuts to legal aid, court and tribunal fees, and procedural changes and notes that rights without enforcement are meaningless: ‘Rights which are unenforceable are not worth having.’

It was particularly heartening to see the Committee’s criticism of the Coalition Government’s weakening of the Equality and Human Rights Commission (EHRC) and its abolition of the EHRC’s power to arrange independent mediation (conciliation) for non-employment cases. I worked as an independent mediator with the original Disability Conciliation Service, set up by the Disability Rights Commission, and its successor, the Equalities Mediation Service. Over the years, from 2001 to 2013, we handled many hundreds of claims alleging disability discrimination in the provision of goods and services.

This provision, the report states, was one of the casualties of the Red Tape Challenge, and it was abolished, with other measures in the Act, because it was considered to place unnecessary or disproportionate burdens on business. The report suggests that the Government should have given the same consideration to measures placing an unnecessary or disproportionate burden on disabled people, and Baroness Deech, chair of the Committee, said: ‘Intended to reduce the regulatory burden on business, the reality has been an increase in the burden on disabled people.’

It’s useful to be reminded of the background of the mediation provision and its demise. From the report:

‘447. The Disability Rights Commission developed a conciliation service to which any complaint arising out of an alleged failure to provide goods or services in a non-discriminatory way under the DDA could be referred for resolution. When the Disability Rights Commission was replaced by the EHRC, section 27 of the Equality Act 2006 gave the EHRC the power to provide conciliation services.

448. In March 2011 the Coalition Government, as part of its examination of public bodies, issued a Consultation Paper putting forward a number of suggestions for changes to the role and functions of the EHRC. One of the questions asked was: “Do you think the Government should repeal the EHRC’s power to make provision for conciliation services, as part of the process of focussing the EHRC on its core functions?” Of the 293 responses received, 61 agreed, 206 disagreed and 26 were not sure. Despite this the Government concluded:

“We have now decided to repeal the EHRC’s power to make arrangements for the provision of conciliation in non-workplace disputes. We do not believe that arranging conciliation services for individual cases fits with the EHRC’s strategic role, or that it is necessary in light of the range of good quality, accessible and effective mediation provision already available throughout England and Wales and Scotland.”660

Accordingly section 27 of the Equality Act 2006 was repealed by section 64(1)(b) of the Enterprise and Regulatory Reform Act 2013 with effect from 25 June 2013.

449.The EHRC wrote: “The removal (which we opposed) of our statutory power to arrange the provision of conciliation services for non-employment cases is a particular concern for disabled people given that the majority of non-employment discrimination claims are disability cases.”661 That concern was shared by the Discrimination Law Association, who told us in written evidence: “DLA members advising and supporting disabled people in non-employment discrimination claims have called for re-instatement of the EHRC power to establish a conciliation service.”662 Most forcefully Nick O’Brien, when asked which two recommendations he would like to see this Committee make, said: “The Disability Rights Commission had a power to arrange for a conciliation service in respect of goods, facilities and services disputes. The need for that, or something similar, has become more acute now that the prospect of taking cases to court—civil cases in the county courts and even in tribunals—is so significantly reduced.”663

The committee also considered whether a new disability ombud scheme should be created. Evidence to the committee noted the plethora of existing ombudsman schemes: As our colleague Nick O’Brien stated, ‘the landscape is already quite cluttered … The challenge is to make sure that the existing ombudsmen more selfconsciously use the powers they already have to embed equality and human rights in what they do.’ The committee was persuaded that yet another ombudsman is not needed and that, instead, the mandates of other ombudsmen should be widened explicitly to cover disability issues.

‘461. We recommend that the Government amend the mandates of those regulators, inspectorates and ombudsmen that deal with services most often accessed by disabled people to make the securing of compliance with the Equality Act 2010 a specific statutory duty.

462. We recommend that any new relevant public sector ombudsman be given an explicit remit to secure compliance with the Equality Act 2010 in the services for which it is responsible.’

Another very useful recommendation relates to data on non-employment discrimination claims. It has been impossible to identify the number of such claims made in county courts because these are not specified. The report recommends:’that HM Courts and Tribunals Service be required to collect from all county courts and from the Employment Appeal Tribunal, and to make publicly available, data relating to disability discrimination claims separately from other claims, as they do in employment tribunals.’

The report overall makes fascinating reading. I look forward to seeing how the Committee’s recommendations are taken forward.


‘Manning’ the ombuds barricades

Ombuds Research

by Varda Bondy and Margaret Doyle In October 2014, we launched (together with Carolyn Hirst) a mapping study titled ‘The use of informal resolution approaches by ombudsmen in the UK and Ireland ’. We discussed at length whether to use the words ‘ombud/s’ or ‘ombudspersons’ rather than ‘ombudsman/men’, but decided on the latter to avoid the title itself becoming the centre of attention rather than the content of the report. However, we felt compelled to touch on this question at the launch, which was attended by a number of ombudspeople as well as academics. After presenting one aspect of our findings, concerning the multiplicity of terms used by schemes to describe the same processes and identical terms to describe different ones, we added a closing remark on the problematic matter of terminology in the use of the term ‘ombudsman’ itself. This included an assertion that the word ‘man’ in…

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Where do campus ombuds fit in?

September 2012

Student complaints: are campus ombuds the answer?

The potential role of campus ombudsmen is a bit of a hot topic at the moment in England and Wales, at least in the world of student complaints. Campus ombuds have been around for some time in the USA. Most universities there seem to have someone in this role. In the UK, however, they are a relatively little known phenomenon.

What is a ‘campus ombuds’?

The International Ombudsman Association (IOA, http://www.ombudsassociation.org), the professional body for ombuds in the USA and elsewhere, describes different types of creature – classical, organisational and advocate ombuds. Campus ombuds fall into the organisational ombuds category, which the IOA defines as ‘a designated neutral who is appointed or employed by an organisation to facilitate the informal resolution of concerns of employees, managers, students and, sometimes, external clients of the organisation’.

Most campus ombuds operating in the US do not investigate complaints themselves but act as a resource for staff and students who experience difficulties and might be considering raising a formal grievance. Although operationally and personally independent, they are for the most part accountable to the university that employs them. Their operational independence therefore depends on the respect given to the role by the university administration and on the ability of the individual ombuds to resist any attempt to compromise their independence.

A model example

To find out more, I recently met with David Rasch, the campus ombuds of Stanford University, a private university in Palo Alto, California that has some 15,000 students and around 2,000 academic staff.

David describes his role as a confidential resource; he emphasises empowerment and he uses mediation approaches, although he is not a trained mediator. He describes what he does as:

  • non-judgmental and supportive listening
  • confidential discussion
  • coaching people to independently negotiate and resolve problems
  • identifying and reframing roots of the problem
  • developing strategies for resolutions that fit all parties’ interests and goals
  • opening channels of communication
  • negotiating, facilitating or mediating between some or all parties
  • developing and recommending systemic solutions

Unlike ombuds here in the UK, David (and his campus colleagues throughout the States) does not conduct formal investigations. Interestingly, he can initiate an inquiry if he becomes aware of an issue – a power not shared by most of the ombudsmen in the UK, who can only take on a complaint that has been raised by an individual complainant (or group of complainants). He keeps no records of any discussions, something that helps protect the confidentiality he promises to those who use his service.

With a PhD and a background in psychology and counselling, David manages to gain credibility from both staff and students as well as wider staff at the university.

Using the campus ombuds is voluntary, and he has no targets to meet in terms of reducing the number of formal grievances or legal claims against the university. Staff and students with a problem are encouraged to see him before filing a grievance, and he asks them to say (in a feedback form) whether they would have used a formal process if they had not gone to him. From this he has a sense of the impact of his work.

About half the complaints he sees relate to employment issues from non-academic staff. Another 15% are from academic staff, and these tend to relate to the tenure process, problems with students and departmental politics. Just over one-third are student complaints, and these range across undergraduate and postgraduate students. He reports monthly to the university’s President on demographics and types of cases but not on specific cases.

Independence

Campus ombuds have been referred to by critics as a means to “stop students from occupying the dean’s office” and by proponents as a “conscience on campus”.[1] Listening to David, my sense was that the role of campus ombuds is hugely valuable, albeit possibly more so for a university’s administration than for a university’s students or staff. Ombuds can keep grievances and grumbles from escalating into full-blown legal claims, ever a consideration in such a litigious country. But even for those with the grievances or grumbles it offers a low-key way to deal with them without inviting the personal and professional destruction that so often accompanies disputes.

However valuable the role, however, it is one that depends heavily on the integrity and robustness of the individual ombuds, and there appears to be little protection for those post-holders pressured by an unsavoury administration to breach confidence or keep a lid on dissent. I have no doubt that David Rasch at Stanford is solid in both these characteristics. Others might not be, and their appointment and dismissal is at the whim of the administration.

Useful in the UK?

How might this role work here in the UK?

This summer the Department for Business (BIS, which oversees higher education in England and Wales) published its response to its White Paper ‘Students at the heart of the system’ and its subsequent Technical Consultation.[2] Buried within a long document addressing student finance and regulation of higher education is a brief mention of campus ombudsmen. BIS notes that among respondents to its consultation, ‘The idea of campus ombudsmen and regional networks was supported by many but seen as unnecessary or inappropriate by others.’

Not an overwhelming endorsement, then. It will be interesting to see how the issue of campus ombuds is handled by the Office of the Independent Adjudicator for Higher Education (OIA) in its response to its own Pathway 3 Consultation. This consultation was carried out in late 2011 (see www.oiahe.org.uk) after the OIA was tasked by BIS to consult on ways to encourage early dispute resolution. The OIA is expected to publish the results and its response soon. The issue is also the focus of work carried out by the Improving Dispute Resolution Advisory Service (IDRAS), a consultancy body for higher education.[3]

The OIA and IDRAS

For those of you who aren’t familiar with either body, a bit of background. The OIA was established in 2004 and is the independent reviewer of student complaints about higher education institutions in England and Wales. It can only take on complaints once they have been through the university’s internal complaints procedure. Yet recent years have seen a steady increase in complaints, with resulting pressure on its staff to deal with cases more quickly. Meanwhile, complaints appear to be growing more complex.

IDRAS covers both student and staff disputes within universities. It produced, in 2008 and 2009, several reports on the state of play of dispute resolution within universities, including an overview of campus ombudsmen.

The OIA’s Pathway 3 consultation sought views on how best to promote the resolution of complaints at an early, internal stage, including the introduction of a campus ombudsman role. The consultation included a survey of the campus ombuds role in other countries, including Australia and the USA, where the role is well established.

‘Ombudsman’ culture in the UK

Here, the term ‘campus ombuds’ is problematic. We have a professional body, The Ombudsman Association (formerly known as the British and Irish Ombudsman Association, or BIOA), whose members are the various complaint-handling schemes for central and local government, housing and various private sectors, including utility companies, financial services and legal services. The OIA is a full voting ombudsman member, as is the Scottish Public Services Ombudsman, which investigates complaints about higher education in Scotland. This means both schemes meet the Association’s membership criteria – including independence and accountability, as well as the power to investigate complaints and make determinations.

Campus ombuds in this sense would not meet the criteria for full membership of the Ombudsman Association. Furthermore, introducing a campus ombuds role here would risk creating confusion with what is in effect a national ombudsman scheme, the OIA, and put in place yet another hurdle for students to overcome before their complaint can be considered independently.

Mediation, not campus ombuds

In the UK we already have a range of mediation options for student complaints that could be developed in the push for more early dispute resolution, before complaints go to the OIA, or even in conjunction with an OIA investigation. There are a few well-established campus mediation services including Dundee University (see http://www.dundee.ac.uk/academic/edr/), which has been operating since 2009, as well as mediators and mediation providers with expertise in higher education (eg Equalities Mediation Service (www.equalities-mediation.org.uk) and IDRAS).

As a mediator with many years of experience in disability discrimination claims in higher education, I confess to having an interest in seeing more mediation taking place, and earlier, in such cases. I see the damage done to students and universities when complaints are dragged out over many years, limiting the options for resolution.

But my vision is not to steer all student complaints into mediation by default. It isn’t right for every case, or for every party in dispute. It is one of a range of tools that should be available for resolving such complaints, and it sits neatly with the authoritative role and investigative expertise of the OIA and, in Scotland, the Scottish Public Services Ombudsman. I’m not averse to having campus ombuds as an additional tool, but I worry that it will provide another hurdle and will add to the time involved in resolving student complaints. I also worry that it will be expensive for individual universities to establish and maintain an ombuds office. And I worry that, without independence, it won’t be a role trusted by students.

Instead, I’d like to see regional networks of specialised, independent mediators established, with the OIA’s support, which universities can call upon as and when needed, and as early as possible in the life of a dispute.

I look forward to seeing the OIA’s response to its Pathway 3 consultation. I’m hoping it will challenge assumptions about how the concept of campus ombuds will translate here and that it will explore the benefits of having access to independent mediation for student complaints.


[1] As quoted by S.A. Weigand, ‘A Just and Lasting Peace: Supplanting Mediation with the Ombuds Model” (1996) 12 Ohio state Journal on Dispute Resolution 1, pp.120-22.

[2] http://www.bis.gov.uk/news/topstories/2012/Jun/he-white-paper-consultation-response-published

[3] http://www.staffs.ac.uk/idr/sbiii_ombudsman.html