The New Ombudsman: An “Open Letter” To Our Profession

24 June 2009

Last Saturday morning I woke up from a pleasant sleep and began to remember an unusual dream.  I’m adrift in the middle of the ocean, looking around as I effortlessly tread water and look around the horizon for land.  I don’t see any, but the sharks near me get closer and closer, though I’m not afraid in the dream, in real life Jaws pretty much did it for me along with the fact at age 7 I witnessed a shark attack on a little girl at a beach in California.  Anyway, back to the dream.  So, I notice I feel confident and am not afraid of the sharks and a huge gray battleship comes cruising by and all of a sudden I’m on the stern of a Destroyer looking aft and a “battle group” of war ships is chasing my ship now.  The COMM signals “battle stations” and I purposefully began to move and take my station.  It’s here the dream ends and at the time it was very confusing and out of context from my normal peaceful life.  Ever so subtly this would signal change and make sense.

It’s not lost to me that I’m “open and vocal” as an independent consulting organizational ombudsman in his first year of formal practice.  I have nothing to hide about this, but I also know from decades of experience in business, it isn’t long until you attract others to you who do not see things the way you do and feel that you are rocking the boat and creating problems.  I would in fact say that the problems are already there, have been there and the time is here to wake up and make changes.  This is what the “new ombudsman” is about.

So, I wake up Monday morning and proceed to begin my day and open an email titled “abc INQUIRY” all in capitals with a straightforward message from a board member of the organization.  He asks me to call his office at a specific time and date to discuss an issue that’s best dealt with over the phone.  Keep in mind I embrace this organization and a handful of its members have been mentors for me, but my direct experience is less than satisfactory.  To make this long story short, I’d placed my call, left a message and last Tuesday got the courteous call back.  In my mind I “forgot” the battleship dream and began to talk with them as if it were a social visit and I was wrong.  It seems this individual was “elected” by the BoD of the organization to approach me about misuse of their copyrighted material.  I listened to the case and the less than black and white verbal description of what prompted the BoD to take a focus with me on such an issue and when all was said and done I “capitulated” and said I’d remove the copyrighted content from my web site.  No, I’m not willing to “argue” the copyright fair use laws with them, which in my defense here was within my rights as I didn’t “hide” the author of the material, but rather used it in full display.  A violation would be if I had used the material and “extracted” it from their material and “made it my own” and this was not the case.

My battleship is going to maneuver now, not for a broadside, but simply to watch and see what will happen next, but in addition to all my “blog material” here on this site that advocates innovation and change and new methods, I’m going to now make some “direct” observations.

First, the world is in the biggest chaos of change ever seen in a long time.  Our profession is OBLIGATED to move and change and get into serving people, organizations and communities rather than keeping to themselves in their historical and bureaucratic ways.  In business strategy you are a “silo” unable to effect any impact or difference for your members let alone the broader external communities that you are in position and chartered to serve.  Yes, there are economic and legal constraints, but you accepted them early on and made the ABA your “master” even over the distributed network of offices and members you serve.  There are plenty of ways to be proactive and empower and enable people into the profession if you would but open your doors and at least look like you are interested in supporting “ombudsmanship” in the broader scheme of life.  My personal experience with your organization is mixed.  Again, I can’t tell you the respect and admiration I have for several members who in their work reach “outside” the bounds of the organization and inspire and educate and promote the organizational ombudsman profession.  If you don’t know who they are, call me, I’ll be glad to differentiate them from the rest.  The rest are the ones who “keep the gate closed” and communicate with extreme dysfunctional and patronizing fashions only to waste time and energy and worse, convey a false sense of interest in anyone from “the outside” participating with them regardless of their published “guidelines” which convey a false openness.  The project that was at one point in time earlier this year on the table with them resulted in a complete “out of context failure of collaboration”.  My proposed contributions were within context to open and published “discussion” materials on their web site.  Me, being the experienced consultant I am, had a solution and was offering it free including a simulated model and the replies with “nays” attached were so out of context and the excuses so absurd I just couldn’t believe it.  There are other issues I’ve read about and observed, but I can only speak for myself here and will now stop… but you all need to wake up to your service and obligations rather than “nit pick” my copyright violations of your material and accept the legal “fair use” practices.

In reply to some of the other questions and discussion, no, I’m not interested in getting certified by any organization that has essentially “resolved” to accept the “resolutions” of the legal profession where consumers are trying to find alternatives.  In the end, every professional organization in the ADR field is the same and aligned with the legal profession, consumers want more choice.  Create your own standards and get “unconflicted” so as to differentiate “true” ADR mediation from what is now ingrained in consumers as legal mediation.  Help to define it and differentiate in the face of “opposing” views of competing organizations that took the terminology and “skewed” it to their strategic advantage in dominating all other related professional organizations and individual independent practitioners.  No, I’m not interest in your training programs, I’ve been “trained” multiple times and ways and am “experienced” beyond any benefit.  My confidence and “know how” comes from years of “travails” in very tough situations with 10s of millions of dollars and families livelihoods sometimes at stake.  At this moment, you’ve not endeared yourselves to me and while I was waiting and watching with many others like myself, boomers looking for a new career option asking me how to get started, we are all currently considering entering into this profession… I won’t be aligning with you, but still do hold to the admirable standards and ethics you advocate for “our” profession.

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An Ombuds Success, Mary Greenwood & Apology and Thank You

16 June 2009

Just some quick and timely observations today on three topics.  First, Ombudsman ADR: The 6 C’s of Sociocratic Peace Building is the most popular article on this OO Blog.  It got a big push months back from Tom K at Ombuds Blog and now John Ford, the editor at Mediate.com.  I’ve submitted this article and others “without success” to other professional organizations.  John Ford has been very “inclusive” here if you view this article in context of their “traditional” offerings.  Indeed, “dad is proud” and this article and system has received positive commentary and accolades for months now.  It’s also the top “link back” article on the OO Blog gaining broad popularity and circulation.  Take a look now as the Mediate.com home page changes frequently.

Finally, I admit it, it’s long over due and over looked by me.  Mary Greenwood is the author of How to Mediate Like a Pro a very concise book with a multitude of awards.  It features 42 good guidelines for successful mediation through negotiation.  My review here is that this book has been very valid for me, 9 months into my formal ombuds career, and my favorite rule is #5 or Mediation is not Therapy; Mediation is not legal advice.  Mary Greenwoods process is to “functionalize” negotiation into a mediation process that has relevant and broad application for all forms of “true”  ADR Mediation.  Often I get an email asking something like, “how did you decide to be an ombudsman and how do you get started?”  For many of “us” just starting our “formal” practice, this is a good first book, concise, to the point, about 75 pages total.  You can’t go wrong.

Next, most recently I’ve followed the Palin/Letterman “conflict” being played out on the commercial media.  Last night David Letterman demonstrated his true character with an open apology for a “distasteful joke” that offended Sara Palin and family.  More important, David was “very genuine” with this apology if you caught it live.  If not, it’s worth a look to find a “clip” on the Internet as, my opinion, ‘this is how it’s done’ when giving a sincere apology.  Now, will mom Palin be gracious and accepting and openly say “Thank You”?  I am a big believer in the Apology as a tool to resolution of conflicts.  Most recently the Mediation Channel has had articles and comments on this and Mary Rowe has long advocated this “technique” with years of observed success.  Now, the “Thank You”, I believe, can provide equal heart felt “reciprocal” healing or neutralizing of “hard feelings”.  My observations on life is that once I gave an apology or watched someone else give one, I hoped for “validation”, but often “we just don’t know” how it was accepted.  For me, if an “Apology” is given and genuine, I think the complainant should demonstrate their true feelings too with a “Thank You” to the offender.  How about you?


Ombudsman Best Practice: Case Notes and Archiving

12 June 2009

Over the recent months I’ve read several articles and blogs addressing the issue and professional ethics of discarding case notes or preserving them as a historical record for possible future reference.  Until now I had not come to any definite conclusion on which is best, but I have now determined that I’ll let the case by case situational status guide me as to how case notes will be treated.  In my “undeclared ombudsmanship” roles there are no case notes, only the memorandums, charters or at least emails “confirming” the consensus and consent of the group or team as a result of resolving issues or conflicts.  These are “open” and transparent communications that are archived to “re-enforce” the group should things stray off track.   This article discusses an Ombudsman ADR case where the collection of ‘materials’ and statements creates a physical (scanned) and digital files folder that needs confidentiality and management contrary to transparent results that organizations may require.

In a recent business dispute I was asked to intervene as a mediating Ombudsman.  None of the parties actually met face to face, the intervention structure was “shuttle diplomacy” using on-line mediation or e-mediation.  The identified “abuses” as declared by the e-commerce web site client company were email and phone messages with “strong language” from an angry customer.  My role was to “remotely” process the complaint and collect information and get down to the root issue between an individual and company customer service employees.  In the beginning, everything did proceed normally, there was communication with me from “both sides” and a collecting of notes into a case journal with links and other email and attachments “supporting” the position of each side.  Each person completed a complaint form.  There were several rounds of discussions to be thorough and complete.  As time passed and unilateral discussion proceeded independently with each party, it became apparent to me that the person in the role of “complainant” against the company was not going to fully participate in the process.  Given my 6 C’s process, a vortex of little or no communication resulted in a lack of fulfilling the 3rd C, cooperation.  The agreement to mediate between both parties had reciprocity from only one side and for a couple of weeks I “assumed” the other would follow through on their verbal confirmation.  This never resulted in an agreement to mediate by all parties.  As “evidence” surfaced as to what the facts were regarding the complaint it didn’t “add up” either.  Pretty soon I was simply working to keep communications open and moving forward, hoping to get the last party into the mediation process, but as time passed the frequency and “desire” to continue by the complainant simply “faded away”.

Key to the process was simply confirming facts verbally with phone discussion based on other information collected.  The passage of time and “heat of the moment” seemed to change the complainant’s disposition in that I believe there was a “realization” and certain level of “embarrassment” once all of the facts were aggregated and “confirmed” during the processing of the complaint form.  In life, as I live and learn, I believe I processed and interviewed the complaint form “too deeply” prior to initiating the mediation agreement.  Initially, e-Mediation with parties has a lot of anonymity and “impersonal” facets to the interaction and these factors also “embolden” some people thinking they are out of reach of any consequences from their actions and irrational behaviors.  The tendency for people to treat others in “abusive” ways seems to be “enhanced” where there is no “personal” relationship, consequence or connection with one another.  In this scenario the “customer service” between a customer and company representatives had the usual “demands” made  by the customer with the threat of ceasing business and/or formal legal action “unless” demands are met.  Once a “third party” is called to step in and bring fairness, integrity and parity to the issue between parties… the tone changes and with the passage of time… passions subside.  In this case, the same characteristics that make the Internet truly “independent” for Ombudsman ADR are also the opposite “edge of the sword” that seems to psychologically empower the darker nature of human beings to “abuse” and “inflame” others.

This “case” never proceeded to completion, never made it past “cooperation” in the 6 C’s.  There was no acknowledged outcome or terms.  I sent “notice” to both parties that they had 30 days to decide to continue and that if they no longer desired to proceed the “case file” would be archived for future reference with no time limit.  The company contacted me by email and asserted they would continue and wanted to resolve any “real issue” if I’d found something.  I agreed and indicated that if the other party “came back to the table”, we would refresh the mediation agreement and continue.  The complainant never responded to the notice and did not communicate with me or the company during the 30 days notice.  The company would like to keep their customer and that remains to be seen now given the non-communication cycle that is persisting.

In conclusion, clearly, the collecting of facts, having information on file from both sides and “realization” by all parties that certain “abuses” were not acceptable behaviors or interactions has resulted in a “solution unto itself” so to speak.  In internal ombuds offices, a corporation for example, such “files” should be managed “off site” and on an “independent” network server from the rest of the “enterprise” I believe rather than “not kept”.  In cases where “social interactions” are not in close proximity, two “external” entities are involved, such as B2B scenarios similar to this discussion; an organizational ombudsman indepentent of both parties and locations can safely maintain and manage physical and digital files contingent upon possible future needs.


The New Ombudsman and Payment for Services

5 June 2009

In my “other practice” a majority of clients are having  “cash flow” issues including one client I have as their “business adviser” for their Bookkeeping, Accounting and Auditing firm.  This is just one case, but virtually ALL of the places I am “virtually” are filing more complaints and issues about not being able to reconcile Accounts Receivables, Invoices and even POS or Point of Sale transactions later “charge back”.  Traditionally these go to a collections department in a big company, but what do we do when our “one person office” has such a large percentage of dead accounts.  We “paradigm shift” do we not?  If I’m observing this across the board in the last 60 days… it’s “melting” quickly out there as it’s my job to “know” before clients get stung.

I’ve noticed now if I go into a pub and even some restaurants, they treat me like it’s “fast food”.  I suspect lower prices to compete in the current economy were the main “driver” to this.  I’m reflecting on my last experience in a recession in the 80s where more than once I was asked to “leave the table” with my party so they could seat another “paying party”.  Indeed, it was back in the 80s many changes in financial transaction procedures began.  Hotels “blocked” out payment on your reservation by phone in advance for the full stay and gas stations started “pay first” before you pump.  Also I’ve noticed that often my credit card is requested when I place my drink order.  “Why”, I ask, “do you need my credit card now?”  With a big smile and flip of some hair and hips, “we are just opening your tab now, that’s all”.  Translation:  “We want to make sure you are good for it now and not find out at the end of your meal you can’t pay”.  Indeed, they “block” out about $100 in advance to “see if I’m good for it” before my drinks and meal come to the table.  Have you noticed any of this?

I am eavesdropping and reading and “chat”ing with professionals who all do business over the Internet and 100% are now saying business has been drastically OFF the last 30-45 days and started declining 60-90 days back.  A lady psychologist and friend has told me she has no new clients this year at all.  For me personally, my number of clients is up, but my fee per invoice is down, BUT I’m surviving.  Why?  Lower fees for services and advance payment policies.

It’s time everyone moves to “advanced fee payment” cycles.  I’ve advised clients to begin doing this.  Net terms and credit cards are fast obsolete as we can’t risk discovering 90 days later that the client took services or products and now they are BK.  Many people are shocked, humiliated and embarrassed as they discover their bank, no notice, cut their credit card limit significantly.  These “surprises” are what is driving this change and my recommendation here to you.  This is the best “free” consultation you’ll get from me this year.  My advice is “our profession” should begin to take fees in advance, even legal firms, psychologists, CPAs and “me” are all doing this now just like the hotel, pub and gas station.  If it’s a huge project, consider an “escrow” account similar to buying a house.  If fees are over small claims limits locally, set that as the point to move to escrow with “terms” for payment and anything “under” that limit is “cash in advance” please.  Once the work is complete it’s the mutual decision that requirements have been met.  This works well for fixed fee contracts, but can also work for projects that expand outside of the original time and scope projected for completion.  The idea is the clients want a result or solution and we want assurance they can pay for services.  There is “risk” here, but it is not related to funds anymore if clients deposit the fee, the risk shifts to “ethics, quality, resolution, satisfaction” from all parties for your work.  Collections agencies are a joke right now, over burdened and no way to collect from “defaults” where people can’t pay as the economic tidal wave slowly moves across America.

You also have an excellent option with escrow.com which more and more professionals are using.  It’s gaining in popularity.  Again, the client(s) deposits cash, you perform your “ombuds role” with a clear “self directed” result (service agreement terms) and the clients “release” payment from escrow.com account.  They do take a percentage of the transaction based on amount of the transaction, but it’s worth it to “assure” payment and it’s tax deductible as “banking fees” for business.  They will also “investigate” if you and the clients cannot come to terms, additional fees for this, but if it’s clear this is “self directed” then risks of additional disputes are lowered and the conclusion of the ADR services should happen without a negative consequence.

So, your choice, continue to bill… give net terms and hope to get paid or change your “habits” to up front advance fees and/or escrow procedures.  These times require that we adapt to survive.    All of my clients and myself now take payment in advance.  My Bookkeeping, Accounting and Auditing client has had “no resistance” to this for all of May.  I used to offer “half day” rates as a minimum block of time, lately I’ve offered 30 minute phone consultations to be more affordable and this scenario has “many takers” lately and is leading to longer term “commitments”, which is the goal.


Mediate.com MCP OO Editorial Correction

5 June 2009

I have had positive feedback from several subscribers and readers of this blog and the Mediate.com Announces Mediator Certification Program: An OO Editorial Review.  I deliberately left out other significant points and some details that would have made the article way too long for most “reader consumption”, but I must make one “correction” that’s been pointed out more than once to me.

In 1995 the IOA or International Ombudsman Association was the TOA or The Ombudsman Association and UCOA or University and College Ombudsman Association.  The “merger” of the later two organizations formed the IOA in 2005.  Nevertheless, both organizations “aligned” themselves with the ABA’s Mediation Resolutions and accepted their declaration of final  “authority” for purposes of standards and ethics for the Ombudsman profession.   So, this is the technical clarification and historical perspective, however; the “linkage” to the ABA and historical adoptions of their resolutions by many other professional ADR and Mediation organizations is correct.  I’ve researched and documented, where material was accessible to me from “the outside looking in”, and the “legal mediation” relationship that persists today is accurate concerning the IOA.


Ombuds Metrics for Community Ombudsmanship Intervention Roles

1 June 2009

In some recent reading on Community Outreach Programs some “team intervention” models and costs were outlined for impacting community related conflict and violence.  The basis of the discussion compared “ad hoc” intervention as a result of conflict and violence from domestic family, workplace and gang related “disputes” resulting in “traditional” city services intervention using police, fire, district attorney, public defender, prison/jail system, community clinics/hospitals and all types of social services that try to deal with the problem after the fact.  While Ombudsman participation was not specifically outlined, they did site “community mediators” and “collaborative facilitators” as a member of the very effective and quantified team model.

The key success of the intervention model was to structure a team of about 5 people in various roles and each member would “take the lead” contingent upon the type of “dispute”.  By example “ex gang members” were used for gang violence and “ex spouses” were used for domestic abuse interventions.  Also key was the cooperative efforts of governmental agencies to notify the team that intervention was necessary based on social worker, police reports or medical emergency reports with indicated “harm” in person to person conflict versus work accidents.  Team members participate as part of their “time on the job” where decision makers and managers “rotate” human resources and assign members towards conflict intervention strategies versus the financial consequences of handling the event after the fact and after “damage is done”.  This is the KEY in that no significant extra cost for city budgets is needed yet the impact of the program is 100% successful where intervention was provided prior to any escalating of conflict.

Some of the numbers used to benchmark the benefit and justify cost structuring for the program were CDC figures stating that the average “personal” dollar cost from conflict and violence was resulting in loss of income was $57,000 per person nationally.  An additional $24,000 in medical expenses per person annually was also a national average.  Worst of all, if the “incident” escalated to a felony assault or crime the cost of processing through the legal system and first year incarceration was $486,000 per person to TAX PAYERS.  Please keep in mind that one city has published data, OO previously reported this, that “legal staff” costs about $94,000 a year per employee in a 1998 published study.  To sum up, worst case scenario, total cost per person, per incident, could be over $500,000.

I’m writing this to enable all types of “peace builders” with just a little data to justify their “discussions” with potential clients, agencies, groups, individuals, parties to current conflict and many more “at risk” people so as to get their project or programs up and running.  Currently, on regular posts by Ombuds Blog, universities are “incorrectly” determining that they can no longer “afford” an ombudsman program or are abandoning preparations to implement or hire ombudsmen.  In reality the university ombuds infrastructure is well positioned to leverage expertise “externally” to their immediate community, it just takes some minor adjustments to the Terms of Reference.  Further justification for this is that as the “economy melts” now, tensions are higher and news reports are about the increase in gun sales as city services now have problems meeting “call demand”.  Reports of divorce and domestic disputes are up.  In my business practice I have increased weekly inquiries regarding disputes business owners are facing from employee stress and anger to vendor supply “no notice” increased pricing and property management or landlord issues who are manipulating the law to their advantage without regard for the business owner, employees and the greater community good.  It’s a mess out there and it’s going to get worse as the tax base revenue for cities declines and deficits for “bail out” increase and large companies “price adjust” to “recover losses”.  All of this begs the “real core issue” and question, “should we provide intervention and prevention with slight increases in budget projected costs OR hope we can deal with uncontrolled “hyper inflated” costs related to the aftermath of conflict and violence?”

I also write this because, like me, most ombudsman or mediators practice “alone” and more and more, as with the classical ombudsman model for some cities, it’s a team approach that makes the real impact for positive “damage control” and lasting individual transformation towards “peace” when made aware, vicariously or first hand, of the “real cost” of uncontrolled emotions and chaos.  Do your best…