Balance and Values – The Many Roles of an Ombudsman

Draft of an after-dinner speech to be given on the occasion of the Annual Conference of the Forum of Canadian

Ombudsman, in Ottawa, on April 1st, 2003.

Introduction

  1. Thank you for your invitation. I am very happy to be part of this first annual conference of the Forum of Canadian Ombudsman. This is an important opportunity to create an arena for thought and for sharing between ombudsmen. In my remarks, I will attempt to explain why such a forum should be very useful, since I am of the opinion that the ombudsman’s role will become more and more important in our diverse and complex societies. This is a role that, as other speakers have shown, requires a measure of independence and flexibility, as well as a great deal of creativity, integrity and courage on the part of the person who holds this title and his or her team.
  2. I have called my presentation “Balance and Values” because it seems to me that whether responding to citizen complaints about their government, students complaining about a university administration, or consumers regarding a large organization, an ombudsman is focused first and foremost on the protection of certain values, values of equity and accountability. We often have to ensure certain social values are promoted by creating an ombudsman, the Office of the Commissioner of Official Languages, the Office of the Privacy Commissioner, etc. The role of values promotion (as fully explained by R. Gregory and P. Hutchesson, on page 15 of their work entitled The Parliamentary Ombudsman (1975) and cited by Justice Gonthier in Lavigne v. Canada, Office of the Commissioner of Official Languages), is a response to “one of the dilemmas of our times”, namely, that “[in] the modern stateā€¦ democratic action is possible only through the instrumentality of a bureaucratic organization; but bureaucratic power – if it is not properly controlled – is itself destructive of democracy and its values”.
  3. I would also like to talk about balance because these values should be reflected within the context of governance relationships. Such relationships between citizen and public servant, between student and university administration, between an individual who is a member of a visible minority and one who belongs to the majority language group, are often unequal. The ombudsman is therefore a regulatory agent in this power relationship, with respect to certain values. Often, he or she focuses on balancing this relationship.
  4. This regulatory role is fully outlined in the academic literature of this field. In the appendix, I have included a document summarizing the academic literature on the subject of the ombudsman. Additional copies in both official languages are available from the Law Commission of Canada.
  5. I wish to examine three of these roles: conflict resolution, prevention, and change, in relation to the themes of balance and values. I will conclude with some thoughts on Oosting. “It is part of the role of the ombudsman to find ways to make sure that internal complaint procedures function more efficiently: The better the government functions, and the greater the effectiveness of these internal complaints procedures, the less the ombudsman will have to do. But is it not precisely the task of each ombudsman to try to put himself (or herself) out of a job?”
  6. The ombudsman, conflict resolution and balance in relationships

  7. Roberta Jamieson explained well that the ombudsman’s function was to resolve conflicts with flexibility. These resolutions involve the actors, the complainant and the administration in a process moderated by an ombudsman. “The ombudsman is one such instrument for conflict resolution which is evolving from historic origins into a highly effective and attractive option. The ombudsman concept involves the public, on the one hand, who calls upon the ombudsman for assistance, and government, on the other, which may be obliged to submit to external scrutiny, but who at the end of the day decides if it will agree to an appropriate and adequate resolution. The ombudsman is squarely in the middle.”
  8. The advantages of using an ombudsman to resolve differences are well known: the process is accessible and inexpensive, or at least it is the least expensive of the legal processes. Its accessibility is not only financial but also intellectual. It is well known that often the ombudsman explains to the citizen how the administration operates. He or she facilitates public education, and the public is then better able to articulate complaints or expectations.
  9. I would like to take a moment to emphasize that, as with any mediator or other agent of conflict resolution, the ombudsman must be concerned with imbalances in social roles. The ombudsman’s role involves translating the values of a society (or an organization) into a dynamic framework, that of concrete interaction in a specific case. The ombudsman must function within this interaction, which is marked by the imbalance of resources. Often the more vulnerable party is the citizen, the student or the consumer, but on occasion an administration may be the victim of blackmail, or may be more symbolically vulnerable. The ombudsman is at the heart of this interaction, in which the imbalance of power plays a key role.
  10. According to Jacoby, the non-coercive aspect of problem solving is liberating. It makes conflict resolution possible by convincing the parties, especially the administration, of the merits of resolution. It is very ironic that more and more courts are using alternative methods of dispute resolution to take advantage of this process, providing the benefits of making citizens responsible and enabling them to participate in their governance. In fact, restorative justice is being used more and more, for example, in criminal law and civil mediation, to move from a justice that is administered to a justice that is negotiated, in order to recognize that citizens prefer to have a voice in the conflict resolution process and that a person’s word (as opposed to an order obeyed) can be a better guarantee of realistic implementation. Ombudsmen discovered this a long time ago.
  11. It is therefore within an accessible context of conflict resolution through negotiation that the ombudsman works to re-establish healthy and better-balanced relationships in which the administration specifically has the opportunity to think about the exercise of its power. In fact, responding to an individual complaint should open the administration to some self-examination: Is the result, in fact, what we imagined? Has the result been fully understood by consumers? Could the process be improved?
  12. An ombudsman must be sensitive to the imbalance between the parties and must do so with integrity. In this respect, the ombudsman must consider developments in conflict resolution theory. This forum for sharing should therefore facilitate the exchange of knowledge with respect to new trends in negotiating conflict resolution.
  13. We should also mention Trudy Govier’s work on trust, in which she attempts to argue when, how and why people trust. She suggests that there is trust related to processes, and trust related to individuals. The credibility of a process and the integrity of the individual who is implementing the process are both essential to the development of trust. Conflict resolution by an ombudsman must be imbued with these concepts: there must be an assurance of confidence in the ombudsman’s function and in the individual who holds the position.
  14. The ombudsman, prevention and democratic values

  15. The ombudsman’s role in preventing interventions is well known: an individual complaint is the catalyst for an analysis of systemic difficulties. “Educating a decision-maker or respondent to become more sensitive to diversity, or to develop problem-solving skills, may be one of the more valuable contributions an ombuds can make to an organization,” says Wagner.
  16. Certainly, this is where the ombudsman must be creative. According to Wagner, the teaching function may occur in various settings. The ombuds may work with individuals explaining policies, clarifying cultural differences and helping parties see the other side to the dispute. The ombuds might also plan training sessions for individuals or groups in conflict resolution techniques or negotiation skills. As Wagner expresses, the ombuds is routinely giving people information about policies and procedure and suggesting a range of options for the individual to consider.
  17. In promoting the values advanced by its enabling statute or the empowering regulations, the ombudsman fulfills his or her function. It is important to take a moment to consider the promotion of values. Every ombudsman serves certain democratic values that may differ. For example, the Office of the Commissioner of Official Languages, the Office of the Privacy Commissioner, and the Auditor General articulate and promote certain democratic values: use of the minority language, privacy protection, and the integrity of public finances. Organizational ombuds ensure proper customer service and promote the values of equity and respect for diversity, for example.
  18. In a speech to the administrative tribunals of British Columbia, my predecessor Rod Macdonald suggested that accountability assumes a moral faculty, a code of conduct, and that the most important mission of an organization’s director is to give rise to this moral faculty. In his opinion, the internal regulations of an organization determine whether the organization can play a role in promoting moral values. An “unhealthy” organization, one based on dictatorial principles, cannot externally promote values which encourage citizen participation. The internal structure of the ombudsman’s office is itself a teaching model for administrations. If the process is rigid, ineffective and painful, it will be difficult to promote flexible, responsive, sensitive and fair mechanisms elsewhere. The experiments that have been taking place within ombudsman organizations serve both a teaching and a preventive function. Thus, in some sense, this forum could permit an exchange of information about methods for facilitating internal arrangements that make it possible to send a clear, external message.
  19. The ombudsman should also demonstrate creativity with respect to transforming government practices. More and more, governments have delegated, either to the private sector or to communities, the responsibility for implementation of emergency assistance or support programs. This transformation must be reflected in new ombuds practices. Perhaps abuse of power will now occur in interactions with a volunteer, a private partner who is less sensitive to values of public interest, rather than in interactions with an overloaded public servant. Thus, flexibility and creativity are therefore required in order for the values of justice and equity to be reflected in all sectors of society participating in governance.
  20. There is no doubt that there will continue to be a development of ombudsman models to protect certain values in our society. This is a very effective mechanism in our democracies. We can picture the creation of an ombudsman for the protection of environmental values, the protection of the interests of developing countries, or of First Nations values. The true challenge will lie in reconciling values that are often conflicting – as in Lavigne v. Canada (Office of the Commissioner of Official Languages). The next step will be to develop reflective processes that attempt to incorporate all of the administration’s values. This is the process of reconciling disparate and, on occasion, conflicting, values to which ombuds are accustomed.
  21. The ombudsman – agent of change from short to long term

  22. We smile at Oosting’s statement to the effect that a good ombudsman is one who is trying to put himself or herself out of a job. But this is one of the roles of an ombudsman that is often underdeveloped: contributing to the development of a culture of sharing and discussion. This contribution clearly takes place both at the administrative level, and at the complainant’s level.
  23. The ombudsman’s contribution to educating administrations is fully developed. This is the preventive role mentioned earlier, its purpose is to implement proper administrative practices and to develop an administrative culture in line with democratic values, an administrative culture that is attentive to its clients’ needs and that is always seeking to improve its practices.
  24. But the ombudsman also contributes to the empowerment of complainants and to their participation in society. Knowing how to lay a complaint or make a claim or request is an asset in a democratic society. Nor should we downplay the ombudsman’s contribution to the development of a civil society that is knowledgeable about its rights, knows how to exercise and require them.
  25. In other words, the ombudsman’s purpose is not only the short-term resolution of conflicts created by often insensitive administrations, or to promote, over the medium term, an administrative culture that is able to adapt to the needs of its clients and that respects the fundamental values of society, but also, over the long term, to strive for a citizenry that knows how to resolve conflict and how to demand to be treated properly.
  26. The empowerment of citizens and their committed participation in governance is thus one of the ombudsman’s ultimate goals. This involves teaching how to resolve conflicts, both big and small, between the powerful and the powerless; promoting values that are too often sacrificed in the pursuit of efficiency; and citizen empowerment and administrations committed to harmonious relationships. Perhaps once all this has been achieved, we may, as Oosting says, dispense with the services of an ombudsman.
Forum of Canadian Ombudsman