The Lawyer, Courage & the New Ombudsman

30 March 2009

I thought I’d take a quick moment this morning to put up a post on COURAGE and the Ombudsman Profession, something we rarely discuss, but has directly involved me recently.  It also is not lost to me that I do compare Legal ADR with Ombudsman ADR and early in my “declared” Ombudsman practice I would be, am currently, being tested in this “differentiation” of the Ombudsman Professional Practice.

I’ve been busy lately, but was handed a “case” by an on-line company where a lawyer was threatening them with litigation if they did not follow policy as posted on their web site and in the way he thought they should follow their own policy.  At first the on-line company just told me, by e-mail, they had a “serious issue” that could not be resolved by e-mail customer support with this particular individual.  So I sent out the complaint form and off we go.  As mentioned in my first post to this blog I would always hold to ombudsman practices and ethics and this holds true this moment, but I also said the purpose of this blog is not for “client” education, but for the profession we are in together.  So I hold to both here regarding disclosure and open discussion among professionals.

What has resulted with the lawyer and his complaint is very interesting.  First, he did agree to mediate the policy issue.  The on-line company agreed to provide “access” to their files and the IT department set up limited access to their “case number” on their system for me to review.  The lawyer stated he could not provide or give access to his “sent” e-mail to the on-line company.  It’s clear the “complainant lawyer” never disclosed he was a lawyer, nor should he have to, but he clearly used “lawyer tactics” to intimidate, bully, threaten and cause fear in the people at the on-line company.  Immediately I thought to myself, “is the legal profession hurting this much in a down economy that they have to extort money from a company?”  The on-line company that hired me never verbally engaged the lawyer’s complaint about policy, it’s all written in e-mail, but clearly the on-line company is “in fear of the threat” the lawyer is inferring if he’s not compensated (blackmailing them over policy interpretation) or proof that they will comply with their policies as he sees fit.  To shorten this story, once the lawyer found out I had been “retained” as the ADR person and he found out I was NOT a lawyer and had no JD or legal certifications in my Ombudsman practice, he tried to literally role over me.  I was flooded with rants and ravings, all his experience and credentials (3 BA’s, a JD and 4 Certifications and member of the New York Bar) as… you guessed it, and he is an ADR practicing lawyer.  In return and from his egoistic centered self, he demanded my credentials of which I gave out of courtesy, but I also knew he would not take it seriously, this is how “independent” one man office ombudsmen will have to have courage to deal with.  A “group office” sanctioned by an entity or institution has “clout” here, but would not be as “independent” and don’t forget the ABA positions itself as the “final legal authority” over many institutions and entities with an ombudsman function or office.  Nevertheless, I’ve let him know that I hold to the ethics and standards of “our” profession and I’m reviewing the case material and will be giving a written opinion and recommendations to both sides, fairly, and that I am qualified to handle the “policy issue” not “legal issue” in context.  I also informed him this is an “informal” process to mediate the dispute or complaint he’s raised with the on-line company and that I’m qualified to do that and have completed dozens of such cases and that individuals and entities select my service to be “truly independent” and informal and purposefully “outside” of the legal channels that Legal ADR offers.  Thinking he’s “got me” he agreed.

This week I’ll prepare my findings all based on e-mail exchanges.  I will also say that this is the first time I’ve had a lawyer as a party in a complaint,  he’s also ADR certified; and the initial complaint is from a “company” and has never used ADR or Ombudsman services before.  This speaks to the times we live in, the “shift” in power structures and the change that is “here now” with many opportunities for our profession.  It also, ironically, speaks to my accurate observations about how the Legal Profession goes about their business and the increased need to distinguish, differentiate and separate Ombudsman ADR from Legal ADR and educate the general public, communities, corporations and government.  Yes, you may think I’m “generalizing” and it’s not fair, but we can read about the legal professions “strategic oligopoly” of the market  and see it “second hand” daily, this is my first time mustering courage in myself to handle it “first hand”.  I could not do this if I had not been “seasoned” in my professional life and handled conflicts previously, many times with lawyers on the periphery, but not fully engaged.

Other observations included here are that the on-line client engaged me because my fees were “competitive” compared to legal settlement.  Once they heard I don’t charge $250 an hour, they were interested, but said it was because I was in fact “outside” of a legal entity and they like that.  Another thing I found was that Type A male lawyer personalities should maybe reconsider taking that into “informal” ADR practices or acting one way in their personal life in the “community” while “acting” like a neutral and ethical mediator in “practice”.  This is clearly an “internal” conflict for such individuals.  We should always practice what we preach.  The actual findings so far are confidential here, but the “nexus” of the conflict was indeed generated by the lawyer in a “subjective” interpretation of web published company policy, standardized and generic as it is, it still was published and forms the basis to mediate the issue.  My last task this week is to quickly negotiate “terms” on both sides and have the COURAGE to do this again under similar “complainant” polarities.


The Gordian Knot: Gay Marriage, Alternative Medicine & ADR Mediation

19 March 2009

I’ve picked just three topics, Gay Marriage, Alternative Medicine and Alternative Dispute Resolution Mediation and placed them in the Gordian Knot category of ongoing and “polarizing” modern day issues that cannot and will not ever be resolved… legally or with legislation.  I enjoy this type of debate very much and what is prompting me to write about this now is the recent “discussion” on another blog in relation to certification of mediators in the ADR, CM & Ombudsman professions.  My own “ombudsman” sword now falls on the Gordian Knot of these 3 “modern problems” while holding to the independent, neutral and impartial cornerstones of my professional “best practice”.

  • Gay Marriage – you cannot legislate away the rights of any individuals under the US Constitution and Bill of Rights, period.  Gay people can marry if they want to in a form of both legal marriage and faith based marriage.  Don’t expect though to force anyone else to recognize your gay marriage from a traditional “faith based” perspective as freedom of religion allows “like faith” practitioners to worship as they see fit too.  Create your own “church”, you have the “right” and then form an LLC in Maryland, California or Oregon where  “domestic partnership” for gay couples is legal and contract for employment benefits (medical insurance etc) through that entity.  There, everyone happy?
  • Alternative Medicine – the freedom of choice regarding the form and type of medicine that you wish to use has long been suppressed by the American Medical Association which has always leaned towards allopathic versus homeopathic or naturopathic forms of medical practice.  It’s been a slow process, but it wasn’t too long ago Chiropractic “medicine” was illegal.  Now you can go to a DO on your health care plan or even go to an “old school” bone cruncher if you “choose” it.   Cut the knot, let “freedom ring” and let anyone use the type of medicine they wish.  All that matters is that informed and educated decisions to make a choice be empowered and enabled for each individual; and the respective professional associations can contribute to that.
  • ADR Mediation – Certification is an attempt to “push competition out” of a market place and make your groups self interest “the only choice”.  The legal profession and associations  with money, political power and “leverage” have increasingly positioned themselves as “the final authority” over other professional associations in the field and leveraged their “nation of laws” into every aspect of life in America.  Drop the sword firmly on this knot and allow freedom of choice again to have anyone mediate that you choose as long as the professional mediator presents their credentials so you can make an empowered and informed decision.  An “inclusive” approach works since the main forms of mediation from the legal and ombudsman perspectives have the place and value concerning specific applications towards “positive” outcomes.  If we all hold to ombudsman ethics and standards we will, upon initial consultation, be able to provide feedback for the client in selecting which form is best for them.  The basic two choices, two edges of the blade, are legal ADR or Ombudsman ADR where legal ADR can progress to arbitration and litigation and Ombudsman ADR refers the case into formal legal arbitration if informal mediation and self directed problem solving fails.

Again, I debate this type of thing all the time with people, but it becomes very clear how the sword falls on the knot if we keep in mind that we are all human beings, we live in a free society, free to make choices and create the pursuit of happiness for ourselves.  Any authority that wants to certify or license someone needs to do so only in that they “govern” those of like mind and that they do not deny rights of individuals who don’t.  The moment a group takes it upon themselves to be “the authority” over “all the land” and others, polarization begins.  Gays do not threaten or deny traditional marriage or move to legislate it away.  Homeopathic practitioners do not deny or advocate rights to use and practice allopathic medicine and sometimes refer out to it if needed.  Legal mediators and professional legal associations cannot deny, legislate or govern “in total” the mediation profession and ombudsmen so as to form a monopoly and deny “freedom of choice” and the power to self govern in a non-polarized, informal and peaceful way.

The “Ombudsmanship” Opportunity & Role

11 March 2009

As many of you know and as I’ve communicated here before, I’ve often expressed the opportunity for the ombudsman role under other business titles or roles.  I call this “ombudsmanship” and you can check the TERMINOLOGY tab for my definition as this word is not in any dictionary.  I’ve also written that I have played such roles in my corporate, business and organizational development practice over the last few decades; and with good success, saving damage to relationships and sometimes, not always, saving a profitable project.  Given the size of the professional ombudsman field and “number of us” out here, it could be beneficial to simply begin promoting the concept with entities that are not yet fully familiar with what we do.

To demonstrate this you might want to look at this recent “job post” for a Director of Business Development.  No doubt this link will expire once the job is filled, so look now, scroll down to the 6th bullet counting up from the bottom of the first set of bullets.  It reads, “Serve as an ombudsman for conflict management between the client and SEI”. Indeed, we are seeing more and more of this, it’s a trend that’s happening more and more.  The strategy here is “customer retention” and “contract management risk mitigation” so as not to get into costly contractual disputes, which can result in a loss of revenue, or worse, a loss of possible key contracts and significant revenue to the company.  I don’t believe anymore, even for small and medium size companies that it’s wise to file for litigation or even begin arbitration.  Many profit margins in today’s economy are “too narrow” to jeopardize and lose profits that can cost jobs and cause “stability” issues.

Again, I always like the opportunity to “prove my case” and this job post is a current example of how “ombudsmanship” is being asked for in the corporate and business levels of companies now.  In terms of organizational development, there is the opportunity here to contact HR of any company and offer ADR, CM or Ombudsmanship training to all levels of management in a company or even organizational ombudsman contract services.  If you do this, don’t forget to show them the “value chain” and cost savings of such an approach.

Finally, if you were to need someone with such a background, I don’t usually “promote myself” here at all normally, but this is the basis of my experience and please contact OO and we can provide collaboration as required.

Classical & Corporate Ombudsman in Corporate Governance: Conflict of Interest Case Overview

6 March 2009

This is probably one of my primary areas of interest in the Ombudsman profession.  Why?  From my experience corporate & non-profit board governance with relation to conflicts of interest has been the “root cause” of many “fraud and corruption” problems that has impacted individuals and communities in America for many decades.  I personally in my career “bumped” into situations where CEOs and Executive Directors were also the founding director and chairman of the board for their entity and ” exclusively controlled” their business in violation of state and federal laws to the detriment of the corporate entity, their employees, stakeholders, investors, contracted partners, “customers” and broader community.  The most common “fault” is “self dealing” and in non-profits and SMB/SME (Small and Medium sized Business & Small and Medium sized Entity) entities, it goes unchecked forever.  Specifically in one case I’m familiar with, the Chairman of the Board in an LLC ordered the Corporate Secretary to disregard placing a matter on the board’s monthly agenda for a formal resolution and vote.  This was  regarding a corporate level “partner supply chain”  contract and instead he asked her to “draw up” the formal resolution, that they then both signed as if it had been passed by the BoD.  It was then “sealed” and sent to the “partner” entity to complete due diligence.  The historical and current trends in the media, with regards Enron forward to the financial services industry, are just the tip of the iceberg.  While “we” can all get upset and write our congressional representatives about disclosures and transparency of public companies and the ongoing fraud, we must ask the question, “is our house in order?”

A possible solution is to have a “government ordered” or “voluntary” internally positioned Independent Director in an “ombudsmanship” role (which is what Google appears to be in the process of adopting as we speak instead of a full Ombudsman role) or a Corporate Ombudsman fully integrated and providing true independent  “oversight” at ALL levels of the enterprise including the BoD and Corporate Officers.  Very often a corporate ombudsman only works on behalf of the board of directors down through the business levels of the corporation.  Lately, a new trend called “board balancing” is making headway where the bylaws of a company are “amended” making Independent Directors a mandatory part of the BoD with the specific role of “best practice governance, oversight and compliance” as activities and meetings unfold.  This is an “ombudsmanship” style role directly linked to SARBOX “trickle down” from public companies into the private industry sector and that also affects non-profits.  This proposed “ombudsmanship” role is better than nothing at all, but what about actually bringing an external ombudsman, classical or organizational, onto the board as a part of “balancing” and “best practice governance”?

It isn’t very often we get a glimpse in the media of this specific type of issue, but here is a case from the UK that provides for a view from both the corporate company side of the table and the actual classical ombudsman in their role under the “authority” of the government.  While I’ve presented the case for an ombudsman role on the corporate or company side in the above paragraphs, this is the external and “top authority down” model and it’s valid.  The UK Pensions Ombudsman made the determination, correctly in my opinion, that a “conflicted” trustee of a pension fund was also in position as a Director of a client company and could participate in a vote to “award or withhold pension benefits” to her ex-husband and his new “partner”.  The directors moved early on in the process to “exclude” the “conflicted dual role director/trustee” from the oversight process and therefore the “award was administered fairly and without prejudice” as determined properly by the Pension Ombudsman.  In this model, The Pension Regulator in the UK, had previously identified the potential for the conflict at at earlier time and made provisions for the Pension Ombudsman to move externally to provide oversight to the process thus demonstrating very good foresight and planning.  They most likely did this realizing, from their side, that their trustees also had “interest” as directors on public and private company boards.

It is very important, if we are to progress as a society, that government provide a “pristine and proactive regulatory environment” to assure that the potential for conflict of interest is removed.  As we speak, President Obama is moving to halt “no bid” contracting for federal services where an “appointed” person can go back to their private industry contacts and simply “plug them in” to contracts (D. Cheney & Halliburton).  After all, if we cannot trust and believe our government holds to their fiduciary obligation with every single citizen, what other “higher authority” is there to appeal to?

Ombudsman ADR: The 6 C’s Of Sociocratic Peace Building

1 March 2009

Thomas Jefferson is quoted as saying, “Democracy is nothing more than mob rule, where 51% of the people may take away the rights of the other 49%” (circa 1801-1809). Indeed, if you get into “our” history not all the “fathers” of our nation were in favor of a two party system.  The two party process assures consolidation and massing of large polarized groups of people that can argue into perpetuity.  If you look at the world, there are pockets of “democratic structures of government”, but without the two party system.  One example, is the Nunavut Provence of Canada.  They use a plebiscite form of government to form their new territory in 1999, successfully breaking away from the 5 party system.  These First Nation indigenous people are wise indeed.  Their plebiscite elected council represents all people in the territory and council members represent them in Canada’s Crown Government.  They use a self governing process where council representatives “facilitate” consensus on issues the “peace pipe by the fire” way and then take their vote to the Crown and vote with the other 5 parties on national issues.  Today, in America, there are “pockets” of this at the “micro-society” level where we work, worship and organize as community members.  It’s a Sociocratic process without “two parties”.  A Sociocracy is a system of government where all interests of all people are served equally through the process of consensus to consent.  The idea of polarized two party (or 5 party) debate is removed.  Indeed, the energy industry in America, by example, is experiencing this form of self government at the local level where their pipelines run through Native American lands and local American communities.

Ombudspersons can use this Sociocratic process with polarized individuals or with small groups or teams, say in study groups, committees, matrix structured  teams, councils and even between any multiple entities with groups of representatives gathered to resolve conflict through the application of ADR methods and practices.  The 6 C’s are used only in sequential order before proceeding to the next C.  They are:

  1. Communication – if there is no parity or communication is asymmetrical among members to the conflict, this very often, my experience, is the simplest form of an issue or conflict and is easily solvable through quality communication.  In this discussion, if we don’t have communication and it breaks down, all other C’s abort the Sociocratic process and you start over.  It’s at this first C stage there has usually been an ongoing and slow “surfacing of an issue” and emotions are the catalyst to “outing” the complaint.  If sequential iterations of applying ADR methods and the 6 C’s fails, arbitration and litigation are other options and thus the “dispute” escalates to polarized “conflict” and outside the ombudsman’s purview.  Key to successful communication is to hold to the 5th principle of empathetic communication: “seek first to understand then to be understood”.  I find “conflicted people” often “get it” and this breaks open deadlocks.
  2. Complaint – take the issue or complaint from all individuals or group members.  You could have a situation where a team of 6 is split into two groups of three, three groups of two or any combination.  Process the complaint with a complaint form from each individual will provide the ombudsman “perspective”.  Conventional two party complaints are also successful under this Sociocratic self governance model.
  3. Cooperation – as the ombudsman gathers information and identifies parties they move everyone to agree to mediate and to cooperate.  This should be in line with established formal procedures of the ombudsman function or office and parties to the “agreed upon conflict” should sign off on the “cooperation agreement” or mediation agreement.  I find taking the legal terms out of facilitation helps cooperation because it removes the “programmed cultural threat” of litigation.
  4. Consensus – the new form of consensus building is where ALL members, stakeholders or parties involved are moved by the ombudsman to formulate their solution to the issue or complaint.  Take “due care” not to fall back into the old form of “forced consensus by majority vote” of a polarized democratic process.  This will leave people “unresolved” that have interest in the outcome.  Consensus requires the most time and patience from the ombudsman and the capacity to utilize all methods of psychology to move people to “focus on their common interests” and over time “forget” or “re-frame” their “points of conflict”.  You are seeking “unanimous consent” structured around goals or solutions stemming from the original written complaint forms.  If you didn’t properly analyze the complaint or the group or parties “shift focus” to other “points of conflict”, you’ll have to start over at this step and re-communicate from the beginning the issue or complaint at hand.  The very last and important key factor is the proposed, negotiated or resolved solution must be in compliance with superceding organization, corporate, government or other entity with legal authority over the parties involved.  If not, it could be that changes in, by example, the corporation’s policies in relation to formulating contracts needs revised.
  5. Consent – Once the ombudsman reaches the point where “rounds” of discussion result in “behavioral confirmation” ie. body language, verbal affirmations and other signals of uniformity, then you can “call the question” asking does “anyone object”.  If favorable, I recommend you write their self negotiated solution out in a memo, terms of agreement, amendment to a team, committee or council charter, or other formal document that everyone signs off on.  The chairman, team leader, project manager or anyone that is a party to the process can also write out the negotiated points and solution to everyone’s satisfaction, but it’s important they read and sign off on it.  Experience shows verbal agreements with no historical “back up” position will not be a successful “conclusion” in the long term.
  6. Coordination – is the final step where the ombudsman, after the agreement is completed, has a “closure” meeting and communicates that continued focus on the terms in the agreement and observable coordination in daily interactions is the proof that everyone really agrees.  The 6th C of coordination carries the connotation “we all cooperated and came to an agreement, now we act and behave daily under our agreed terms”.  If a lack of coordination in the activities of the team, council, committee or whatever “breaksdown”, they can “self govern” and remind themselves of the terms.  If though, in the end, there is sometimes one person that just will not conform and this is causing harm or wasting resources towards the economic or social “good”, they should be asked to leave the group and find a replacement or if it’s several individuals, it may have to then proceed to arbitration or litigation.  Ask that person(s) to cooperate and decide what they want to do.

I have used this process in what I call an “undeclared” facilitation structure when in business process applications.  I mostly use it on a “preemptive” basis as I can now recognize a problem forming between “polarities” in early stages of development.  For “informal” ombudsman procedures you can “name” this form of ADR however you wish, as long as it fits the group and their culture.  By example, there may be, in a religious application, a religious council term for church groups you can adopt in a “community ombudsman” role or if they are perhaps a business team assigned to a project, simply call it a “dispute management” team meeting.  And now, within this context, think of what might be the possibility in America with a procedure to self govern, to solve issues and disputes without feeling a need to join a side and fight from a point of narcissistic greed, ego-centric entitlement and my rights over others rights?  Rather keep focus on the economic or socially desired outcome to the benefit of the many, respecting all individuals and living in peace.  Hmm…