The Lawyer, Courage & the New Ombudsman

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.

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