Dave McNabb: Adjudication Idols and Ombudsman Bridges: The Private Enterprise of Independence and Fairness

QUARTERLY REPORT

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Reprinted with permission from the Conference on Consumer Finance Law—Vol. 60, No. 4 Winter, 2006
Adjudication Idols and Ombudsman
Bridges: The Private Enterprise of
Independence and Fairness
By David McNabb*
I. Introduction
This article discusses your author’s practice as an Ombudsman with RBC ˇinancial Group and its 12,000,000 individual and business clients in Canada. The RBC Ombudsman service is voluntary and free for clients. Your author is an employee of RBC with a mandate to investigate and resolve fair dealing issues in escalated complaints and systemic issues, using ADR and conflict resolution techniques. Our recommendations are non-binding.
My practice with RBC business and functional leaders involves vigorous and robust discussion when necessary, and acceptance of my independent role. Most understand that my views and my role are instruments of company governance and reputation risk management, resolving how RBC values of excellent service and integrity are extended in client relations. I do 99.9 percent of my casework by phone and correspondence from my office located in Toronto, home of Major League Baseball’s Toronto Blue Jays.
Adjudication ideals or “idols” (as I call them), like independence, impartiality, procedural fairness, openness, access, and public goods are standards that I use to orient my practice at a distance from the parties, and to locate normative effects. The Ombuds Committee of the American Bar Association (ABA) Administrative Law Section1 identifies two of these idols: independence and impartiality, in addition to the Ombudsman idol of confidentiality, as essential guides to the Ombudsman practice in Classical, Organizational, Executive, and Advocate contexts.
The ABA Administrative Law Section website provides a good sense of the role of an Ombudsman as it exists in U.S. and state governments and their agencies, and in universities and colleges, healthcare settings, and private sector companies. There is a real difference in Ombudsman practices and models in different sectors. A complete discussion of the differences is beyond the scope of this article, but the ABA Administrative Law Section Executive model is a good reference when structuring a consumer financial services Ombudsman role inside a large company. It was one of the sources relied on to inform the structuring of the RBC Ombudsman office and my input to the Canadian Bankers Association in the structuring a national, industry-based Ombudsman service in Canada.
Your author practices fair process and does not pretend to practice law. I work privately with clients, inside a consumer financial services provider. I use distance from the parties and narrative mapping of circumstances, information, and recollections to create understanding and order.
ˇocusing on the circumstances of the parties and the effects and impressions introduced by Ombudsman work, analysis, investigative reports and recommendations can be thought of as “being present” with the parties. ˇinding, shuttling, engaging, and interpreting case gaps and case data between the personal realities and feelings of each party, consumers on the one side and bankers on the other, requires Ombudsman bridgework that builds trust. I use self-distancing and understanding as normative techniques or “technologies,”
* © 2006 American Bar Association: Adjudication Idols and Ombudsman Bridges: The Private Enterprise of Independence and ˇairness, by Dave McNabb, from ABA Section of Business Law Spring Meeting, Tampa, ˇlorida. Reprinted with permission.
David McNabb is an experienced Ombudsman and dispute resolution practitioner. He has a Master of Laws (LL.M) in Alternative Dispute Resolution from Osgoode Hall Law School at York University, Toronto, Canada. He is a leader in the development of Ombudsman practices for financial consumers through his case work, educational interests, and participation in professional boards and accreditation committees. David is chair of the Research Committee of the ˇorum of Canadian Ombudsman, and Chair of the Ombuds Section of the Association for Conflict Resolution, Washington, D.C. He has a Chartered Mediator designation from the ADR Institute of Canada. David has provided appeals for approximately 1,000 unresolved disputes between consumers and the company across all consumer business lines including banking, investments, and insurance.
In 2006, David celebrated his 30th year of working with RBC ˇinancial Group and its customers. David and his son live in Toronto. David is a citizen of the United States and Canada.
1. ABA Administrative Law Section, Ombuds Committee, available at http://www.abanet.org/dch/committee.cfm?com-AL322500.
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together with the apparent contradictory idols of openness and confidentiality, to create normative effects and resolve party acceptance. It is the new relationships between openness, confidentiality, self-distancing, and understanding that occasion safe and reliable Ombudsman bridges for dispute resolution.
My basic thesis is that the legitimate enterprise of creating new relationships between normative technologies and contradictory idols will occasion acceptance of Ombudsman outcomes for or against a particular party. Right and wrong, errors and omissions, and fairness in all of the circumstances will reveal themselves, safely, through reality-testing by a senior banking peer (the Ombudsman) working independently and privately with all parties. That is what is meant by the private enterprise of independence and fairness.
Additionally, just as the Sunshine Skyway Bridge has effects on Tampa Bay and the surrounding communities,2 an Ombudsman bridge also has effects on bankers and consumers by its very presence in a system of consumer redress. Normative influence from a fair process goes beyond a particular dispute. Consumers and bankers familiar with the Ombudsman alternative adjust their own behaviors, enhancing their mutual influence in future consumer financial services relationships. The potential for litigation and its direct and indirect costs are reduced. ˇor disputes not resolved, arbitration and litigation options for consumers remain unaffected.
Reality-testing contributes to practice leadership. The question arises: If consumer redress is not determined in the rules-bound, normative space of the law with all of its protections, how can consumers and bankers be fairly heard in a practical sense and how can Ombudsman services and outcomes be legitimate, independent, and fair? The explanation must begin with some history and context about the operation of the RBC Ombudsman service, including statistics. Then this article discusses the private enterprise of independence and fairness in a practical sense, followed by a discussion of legitimate Ombudsman outcomes and private settlements, adjudication idols, and then my conclusion.
II. Background and Role
RBC ˇinancial Group3 is the largest banking group in Canada by market capitalization and assets and has significant market shares in all of its consumer banking, investment, and insurance businesses. RBC is one of the most recognized consumer brands in Canada and one of North America’s leading financial services companies. Royal Bank of Canada, the ultimate parent of RBC member companies, is listed on the New York Stock Exchange as “RY.” Its financial performance ranks in the top quartile of North American banking groups. RBC Ombudsman services are also available to the 2,000,000 consumer clients of RBC located in the U.S.
In response to the voices of small business customers who felt poorly treated by large banks coming out of the economic recession in Canada in the early 1990s, discussions between the industry and the federal regulator of banks in 1993 resulted in small business access to a national system of non-binding, independent third-party mediation of disputes between small businesses and banks. In 1994, each Canadian bank established and administered access to a national system of dispute resolution for small business clients. Within a year, with little evidence of participation by small businesses, the head of the Canadian Bankers Association agreed with the federal Minister of ˇinance that all large federally-regulated banks would establish an internal Ombudsman Office to hear and resolve the complaints of small businesses. Each of the handful of large banks established an Ombudsman office.
In late 1995 your author opened the RBC Ombudsman office and took the first telephone calls. In 1996, a year later, the first industry Ombudsman opened for business to consider small business disputes and then, a year after that, personal banking disputes were added to the mandate. David Agnew is the successor Ombudsman for Banking Services and Investments. Today, at least ninety-five percent of consumer financial services clients in Canada have access to an industry Ombudsman redress system.
RBC Ombudsman services are available without cost to all individual and small business clients of RBC ˇinancial Group member companies around the globe. In addition to casework, the RBC Ombudsman proactively recommends product/system/service changes in the interest of RBC and its stakeholders, thereby contributing to their long-term prosperity. Our office, like the internal Ombudsman office in each of the larger banks, exists by informal agreement with the federal regulator, an arrangement going back to the mid-1990s. I am not aware of a statute that compels a large bank to have an internal Ombudsman office. Also, like the Ombudsman office at other large banks, our office is small. The RBC Ombudsman has three case managers including the Ombudsman and two deputies. The RBC Ombudsman has access to the President of the company on a regular basis and certain board committees as necessary.
I bring a formal background in ADR— Alternative Dispute Resolution—to my role as a Deputy Ombudsman in addition to my subject matter expertise and experience in banking and investments. I started my career with RBC thirty years ago; I completed an LL.M. in ADR two years ago at Osgoode Hall Law School at York University in Toronto. I am not a lawyer. I was admitted to the LL.M program due to my extensive experience in dispute resolution. I am a Chartered Mediator, C. Med, and I sit on two-mediator accreditation committees–one for the Toronto court system and one for the ADR Institute of Canada. The ADR Institute grants the Chartered Mediator designation. Recently I qualified for and was added to the “industry” roster of Arbitrators for the National Association of Securities
2. Ed. note: This article is based on a presentation at the ABA section of Business Law Spring 2006 meeting in Tampa, ˇlorida.
3. See RBC ˇinancial Group Corporate Information, available at http://www.rbc.com/aboutus/index.html.
646 QUARTERLY REPORT Reprinted with permission from the Conference on Consumer Finance Law—Vol. 60, No. 4 Winter, 2006 Dealers in New York. One of my proudest achievements is my 1998 Volunteer of the Year award for excellence in Mediation and facilitation given to me by my local not-for-profit community mediation service, Conflict Mediation Services of Downsview. I am the chair of the research committee and board advisor to the ˇorum of Canadian Ombudsman. Some of my professional colleagues, with whom I share the same facilitative style of mediation, will be interested to know that I also see value in an evaluative approach to mediation. I have realized through experience that consumers actually want someone to decide fairness issues, even if the decision is non-binding.
III. Processes and Scope
The intake and triage of the contacts that arrive in the office every day are managed by two experienced administrative staff assistants with the advice of the RBC Ombudsman and deputies on a rotating basis. So, we have two operations in our office: contact management and case management. At RBC we characterize the Ombudsman as “step 3” or “level 3” in the published RBC complaint escalation and referral system. RBC has four steps in this laddered system of escalation which can be accessed by clients through branches, mobile specialists, the telephone, and the RBC website. Clients are encouraged to start at the source and speak with RBC staff and managers at “step 1” where the problem arose. If still unresolved, clients then access “step 2,” the RBC Customer Relations centre, a central office staffed with senior problem resolution experts. “Step 3” is the RBC Ombudsman office and “step 4” is the Industry Ombudsman service and other external consumer supports like regulators.
Since the concept of a consumer financial services Ombudsman is well entrenched in Canada (I believe there is a fifty percent awareness rate), often the first call or e-mail placed by some RBC clients is to the Ombudsman. The RBC Ombudsman office is a free, non-binding dispute resolution service with about 14,000,000 clients around the world, so it is a practical impossibility for the RBC Ombudsman to be the first point of contact for RBC problem resolution. Neither is it in the interest of clients. We have developed routines in the Ombudsman office to make sure clients are served promptly. We have a motto in the RBC Ombudsman office; “closer, quicker.” The closer we can get the client to the source of the problem, the quicker the response and resolution. Of 2,481 contacts in 2005, eighty-five percent were directed back to senior regional bankers or step 2 (the RBC Customer Relations centre), after we determined they had not already reviewed the case. In 2005, 378 cases or fifteen percent of daily contacts turned into Ombudsman cases for investigation. We ask each client to sign an agreement in writing that outlines the terms of our service. It is not unusual for a complex banking case to be outstanding in our office for sixty to ninety days and complex investment advice cases for 120–180 days. Many get resolved much sooner, some longer. Time to close a case is always a challenge to be actively managed and usual time frames are disclosed at the first opportunity.
The disclosure to the client emphasizes that the RBC Ombudsman service:
• is a voluntary and confidential service;
• may serve as an effective alternative to the court system;
• provides, within RBC, an independent and final review of unresolved issues and customer concerns about the fitness of RBC service and administration;
• provides an opportunity for frank and open communication; and
• when appropriate, may make recommendations to resolve issues where our investigation finds that RBC’s actions or inactions contributed directly to client costs or losses.
The RBC Ombudsman service does not:
• investigate complaints about service fees, interest rates, other matters of general policy, issues that are in litigation, or transactions for which RBC records no longer exist (usually after six or seven years);
• reverse or remake credit or underwriting decisions such as lending and insurance claim decisions, although we may review the process by which such decisions were rendered;
• offer legal or related regulatory opinions or findings; or
• provide a stay, or extension or waiver of any formal proceedings or limitation periods outside the RBC Ombudsman process, which may be applicable to any dispute between the client and RBC.
The reader is directed to look at some statistics and case examples over the years at our website.4
To summarize, the RBC Ombudsman service is akin to an impartially mandated independent peer review of the process of decision-making by bankers in specific situations and relationships. The President of the company, its board of directors, staff and clients depend on us, as an instrument of good company governance, to execute this mandate, and this gives us our authority. RBC bankers, insurance specialists and investment advisors make a difference for individual and business clients everyday and, as an Ombudsman, I remind myself that I see only cases where something may have gone wrong. The vast majority of issues and client concerns are resolved in the normal course of RBC business operations.
4. http://www.rbc.com/ombudsman/annual_report/stats.html.
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The RBC Ombudsman understands that each case is unique by its circumstances and the parties involved. No two disputes are exactly alike although it only takes one case to reveal the possibility of systemic administrative and service delivery issues. Systemic issues, if any, are resolved through recommendations from the Ombudsman to the business segment or department whose error or omission in policy, process or service resulted in an effect on the client. As noted, we do not make or re-make lending decisions, insurance underwriting decisions, investment advice, or investment suitability findings.
The RBC Ombudsman does not decide credibility. We believe that a search for the truth in the normative, rules-bound arena of the law and courts, with protections for both consumers and bankers, is best suited for this exercise. Knowing this, it is expected that RBC will provide disclosures and useful information and documentation when interacting with clients, in order to demonstrate efforts at a level to fit the circumstances of a dispute.
IV. The Private Enterprise of Independence and Fairness
Your author uses ADR and conflict resolution techniques, strategies and tactics as normative “technologies” when interacting with clients in my casework. This open enterprise involves self-distancing and understanding in private consultations with the client, following essentially the same linear pattern in each case although it is tailored to each situation. My default medium for intervention is an investigative report.
Investigation in this context goes beyond reviewing documents behind closed doors. The practice of investigation is a socially-situated, humanistic activity requiring telephone interviews with each party, and the identification, collection, analysis, interpretation, reality testing, mapping, and reporting of information, circumstances, and fairness found in the interviews and documents. RBC Ombudsman case reviews are informed by good financial services practice and good business practices, company policies, industry codes of practice, the law, and compliance with rules and regulations.
Importantly, the RBC Ombudsman service does not decide, nor will it be seen to decide, the law or compliance with standards, rules, or regulations. It is not often that I will receive a consumer complaint that is framed by legal and compliance issues. Routinely I choose to keep the law and compliance in the background of my work, while allegations of RBC service and administration failures are foregrounded providing a basis for Ombudsman intervention. When the law or compliance is an issue, the firm’s views are noted as appropriate and clients are advised that the RBC Ombudsman has no role in deciding such matters.
In a practical sense, the RBC Ombudsman service privately reviews and reality-tests the fitness of RBC service and administration in situations and relationships involving consumers and bankers. With a mandate to assure that there is fair dealing in escalated complaint situations through effective conflict resolution, my focus is on RBC behaviour and decision-making in the context of client relations. The RBC Ombudsman understands that the “what,” i.e., the suitability of particular advice and decisions in each banking solution, most often underlies the value added by individual bankers and is unique to the consumer’s circumstances. Common sense suggests that a solution to one consumer’s situational needs will differ from that of others, so that appropriate RBC responses will vary legitimately between individual consumers, bankers, and financial service providers.
The RBC Ombudsman service is not a substitute for internal company control and compliance assurance mechanisms. Neither is it a substitute decision-maker for internal and industry compliance regimes mandated to receive consumer complaints and regularly decide matters of suitability of advice and bank decisions. Consequently, with effective internal company controls, it would be an extremely rare occasion that the RBC Ombudsman would see a gross error in suitability of advice and decisions. Rather, the RBC Ombudsman service is a reality test of RBC self-governance, fairness, and ethics. The RBC Ombudsman service reality-checks how employees apply and extend RBC values in their dealings with consumers. RBC staff behaviour and decisions in administration and service delivery bring RBC values to life everyday. Creativity, innovation, efficiency, and the role of compliance professionals and bankers is not impeded by Ombudsman practice in private sessions with clients, which are focused on the fitness of that service and administration.
Some may say that an enterprise focused on independence and fairness by an employee of one party, who does not take sides, is an oxymoron. How can an employee not take sides, and how would you know otherwise, particularly when the enterprise is private? There is no direct oversight by a regulator. However, Professor of Law Paul Verkuil at Cardozo Law School, who suggests that in American law the term “private due process” is an oxymoron because only the state can give due process, also says that it does not have to be that way.5 Professor Verkuil inquired into the procedural gap created with the privatization of some U.S. government functions. He noted that the gap is greatly exaggerated and that procedural protections have grown up organically in the private context.6 Private due process doesn’t have to be an oxymoron, and an employee with an independent mindset and a specific mandate to be impartial doesn’t have to take sides, e.g., as between RBC and its clients. The enterprise of establishing new relationships with clients emphasizing understanding, openness, and confidentiality, has grown up organically in my practice and been informed by private due process standards over the last ten years. Professor Verkuil also described what he calls the mixed motivations for due process protocols in private arbitration of consumer disputes, noting: “…[A]t one level it seems like a public relations effort to enhance the value of mass justice arbitrations; at another
5. Paul R. Verkuil, Privatizing Due Process, 57 Admin. L. Rev. 964 (2005).
6. Id., at 992.
648 QUARTERLY REPORT Reprinted with permission from the Conference on Consumer Finance Law—Vol. 60, No. 4 Winter, 2006 level, it shows that fair process is not the exclusive obligation of government.”7
Some may see private reality testing on the surface as a shield for company failures. Certainly that is not our intention or our practice. But then, if an Ombudsman is not a shield for a company, and with so many regulators, compliance professionals, and perhaps client and company lawyers reviewing the Ombudsman’s private practice, how does an Ombudsman maintain a balanced credibility?
The credibility and legitimacy of Ombudsman work requires acceptance by consumers, bankers, and others. Acceptance by consumers, bankers, and other stakeholders and observers may simply be evidenced privately, or expressed in more formal ways. But an Ombudsman cannot simply claim credibility and legitimacy in a vacuum.
Private dispute resolution has both detractors and supporters. The seminal piece, Against Settlement by O. ˇiss,8 argues for the public adjudication of private conflicts, which often have at their core normative social values and principles. He states that the job of…“public officials chosen by a process in which the public participates…is not to maximize the ends of private parties, nor simply to secure the peace, but to explicate and give force to the values embodied in authoritative texts such as the Constitution and statutes; to interpret those values and to bring reality into accord with them.”9 ˇiss ends his article with an appeal “to confront the betrayal of our deepest ideals.”10 One need not agree fully in order to note his point that private settlement by an Ombudsman is not a substitute for more formal adjudication where that is needed.
V. Adjudication “Idols”
Ten years ago David Luban, Professor of Law and Philosophy at Georgetown University Law Center, revisited the work of O. ˇiss. In Luban’s work, Settlements and the Erosion of the Public Realm,11 he concluded that “imaginary legal systems in which no cases settle, like those in which all cases settle, would be thoroughly undesirable.”12 In asking whether anyone can really be against settlements, Luban concluded that “the settlement process can realize some of the values ˇiss and I both find in adjudication. These include openness, legal justice and creation of public goods. Settlements can fulfil these values, at least in part, but only if they are crafted with this end in mind–and only if we are prepared to oppose settlements that defeat these values.”13 The question therefore, as it pertains to the private work and structure of Ombudsman services, is a question of design that respects public adjudication ideals or the “idols” of legal justice, public goods, and openness. The following part of this article will attempt to illustrate how your author’s practice complements and is consistent with these idols.
In the first instance, the RBC Ombudsman service respects the principle of legal justice since we do not decide the law. We do not decide credibility. Consumers retain their arbitration and court options when engaging the RBC Ombudsman service. If a consumer chooses to accept the terms of the RBC Ombudsman service and if the complaint remains unresolved, the consumer does not give up the right to take the complaint to another forum.
A plain language review of the written account agreements between the consumer and RBC is an important first step in understanding the basis of a complaint. Signed account agreements provide important structure and order for the relationship, and must be respected. Your author places a great deal of emphasis on client signatures appearing on written agreements. These agreements are not set aside, as this would invite chaos and would not be at all consistent with legal justice.
Any possible legal controversies between RBC and a consumer are identified early when convening a complaint process and usually before receiving a case for investigation. If the dispute is entirely defined by a controversy over the law, we will most likely decline such a case. This does not happen very often, although recently a lawyer for a consumer client wrote to me and insisted that a 1994 Royal Bank letter offering free account services was an agreement, because by her actions the client accepted the offer. There was no specific end-date for the period of the free services stated in the letter. Of course Royal Bank decided several years later that it could no longer offer the free services because of the cost. It seemed like an issue of contract law to me, so I sent the case to the RBC law department for review and a direct response to the lawyer. I wrote to the client’s lawyer declining the case and confirming my referral to the RBC law department.
Of course the law operates in every case I review although this does not prevent a review of fairness considering all of the circumstances. Often there is no disagreement between RBC and the consumer on the law and it is not an issue. However, even when a consumer has not identified a disagreement in the law, RBC errors and omissions reviews can reveal issues that have legal implications at their core.
Your author handled an estate case recently where the preliminary review suggested a gross error by the bank in allowing a third party with a power of attorney for a now-deceased client to initiate an account withdrawal after the death of the client. The estate representative, who was estranged from the person with authority to act as a power of attorney before the death of the client, was claiming a six-figure loss directly related to the apparent error of the bank. Experience suggests that such a gross error has important legal implications for the estate. My first action was to refer the case to the senior regional manager with oversight responsibility for the branch where the transaction arose, and ask that person to get advice and a
7. Id., at 985.
8. O. ˇiss, Against Settlement, 93 Yale L.J. 1073 (1984), in J. MACˇARLANE (ED), DISPUTE RESOLUTION READINGS AND CASE STUDIES (Toronto: Emond Montgomery, 1999) at 43.
9. Id., at 44.
10. Id., at 45.
11. David J. Luban, Settlements and the Erosion of the Public Realm, 83 Georgetown L. J. 2619-62 (1995), in CARRIE MENKEL-MEADOW AND MICHAEL WHEELER (EDS), WHAT’S ˇAIR: ETHICS ˇOR NEGOTIATORS (San ˇrancisco; Jossey-Bass, 2004) at 486.
12. Id., at 487.
13. Id.
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legal opinion from the RBC Law Department and then write to the client. Once the error was confirmed by the bank I wrote to the client confirming the error in process and policy on the part of Royal Bank in its handling of the transaction.
At the same time the bank told me that it had concerns with the authenticity of the will. Royal Bank had come to know that there was more than one will. Therefore, the alleged connection of the Royal Bank error in process and policy to the six figure losses claimed by the estate representative was not at all certain. I wrote to the client indicting that it was not the role of the RBC Ombudsman to sort out the legitimacy of wills with competing claims. I advised the client that if he felt matters were not satisfactorily addressed after hearing from the RBC senior manager, he could always come back to me for a fairness review. I have not heard back from that client. This illustrates that my private work as an Ombudsman will always involve cases where the law operates, and fair and legitimate Ombudsman outcomes determined in private using a fair process can help ensure that case outcomes are not realized at the expense of legal justice.
As noted, philosophically some scholars will say that the freedom to choose a mutually satisfactory outcome in a private dispute should always yield to the public realm.14 But freedom is also a public value. Some scholars will say that public morality is being decided in private when it ought to be decided in the courts.15 But this is to unduly expand the public sphere. As I have said elsewhere in this article, my practice focuses on “how” bankers in their dealings with consumers make decisions and develop advice in ways that are consistent with RBC values reflecting excellent service and integrity. It is true that similar values can be found in almost any large and small company and, in that way, it could be said they are public values. RBC values diversity and accepts employee values. At the same time, RBC employees are expected to reflect RBC values every day, always. These values are supported and realized through a detailed employee code of conduct that is designed to specifically guide employee conduct in relationships with RBC stakeholders, with no exceptions. These RBC values are thus a form of self-governance to guide behaviour, products, and policies in the administration and delivery of services in the RBC community.
As a matter of principle, resolving fairness issues in private negotiations is an extension of this self-governance. Private Ombudsman work encourages a recognition of mutual responsibility balancing each party’s self-interest and self-development. This facilitates the smooth functioning and mutual influencing of consumer financial services relationships. As a practical matter, this mutual self-governance then facilitates legal justice. As a layperson, it seems to me that a functioning system of legal justice depends in part on self-governing behaviours and individual responsibility. By extension, my private Ombudsman work facilitates mutual self-governance in the RBC community.
“Economists define a public good as a beneficial product that cannot be provided to one consumer without making it available to all (or at least many others).”16 The RBC Ombudsman form of self-governance is a public good accessible to all RBC clients globally. Regularly we have case discussions and presentations within the Ombudsman team, which have the effect of norming approaches to fair case outcomes. We also have regular outreach communications to share our experiences and the lessons learned, so that consumers generally will benefit from access to RBC Ombudsman normative approaches across the RBC ˇinancial Group. By creating a public good, and incorporating other adjudication values and ideals like legal justice and openness in our private work and outreach, the RBC Ombudsman service encourages fair dealings and complements a sustainable system of legal justice without deciding the law.
VI. Conclusion
In this article, I have outlined my approach to resolving fair dealing in escalated consumer complaints. I use self-distancing and shared understanding as normative technologies, together with the contradictory idols of openness and confidentiality, to create reliable and safe Ombudsman bridges. ˇairness reveals itself independently and can be best thought of as good citizenship in consumer financial services relationships; this affects both service providers and consumers. ˇocusing on the parties and their circumstances, and the effects and impressions an Ombudsman introduces when interacting with consumers, can be thought of as being present with the parties. This legitimate enterprise creates normative effects and party acceptance of the Ombudsman role and Ombudsman outcomes whether for or against.
The Ombudsman alternative is an extension of company values and self-governance which offers the opportunity for service providers and consumers to resolve service and administration disputes directly. In my view the Ombudsman concept complements a sustainable system of legal justice. Arbitration and/or judicial options remain available to consumers if matters remain unresolved. ˇinally, the Ombudsman alternative and its awareness in the public domain have normative effects in a system of consumer financial services redress by their very presence. Effectiveness and reliability are questions of design and execution, but the potential benefits are significant.
14. See, e.g., Luban, supra note 11, at 495; ˇiss, supra notes 8-10.
15. See Luban, supra note 11, at 496.
16. Id., at 489.

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