With much of the current policy-thinking centered on integrating what used to be termed “alternative” dispute resolution within the court system, it is more important than ever to remember that there are forms of dispute resolution that do not require parties to issue court proceedings in the first place. That there are gaps in this landscape is a truth that is universally acknowledged, however the success in rebuilding trust in sectors where this has dwindled, thereby increasing consumer confidence at a time when this is on the decline[i] is all the more important and should remain at the forefront of policy design. An Ombudsman offers a strong, tried and tested means by which to achieve this, reducing the burdens on the courts, whilst at the same time, providing data and insight to policymakers, regulators, those within jurisdiction and the sectors more broadly, making this a solution that becomes increasingly hard to resist…
Ombudsman typically operate in a specific sector, which is why is has been historically considered important to have one mandated Ombudsman per sector, to ensure joined-up, uniform and consistent data that can serve each sector individually and serve it well. This has been championed by consumer groups, such as Which? who has again recently reiterated this[ii], for example in sectors where an Ombudsman is currently voluntary (such as home improvements) and others where there is currently no Ombudsman available to hear consumer disputes (such as aviation). For this reason, the ADR providers that have entered the dispute resolution market in recent years should be seen as something quite distinct from an Ombudsman.
There is a drive within the civil justice system presently to move away from merely considering ADR[iii] towards mandating the use of forms of ADR within the court process, presently envisaged within the small claims jurisdiction, thereby “expanding avenues to redress” such that “mediation will become a standard step in the vast majority of small claims proceedings”[iv]. This is, of course, to be welcomed and will no doubt be instrumental in changing the adversarial culture that was until recently seen as an inevitable side-effect of litigation.
What should not be forgotten, however, is the no-mans-land between a complaint and the issue of court proceedings, a currently unmapped void of untapped data and unrecorded successes in dispute resolution. This is the space occupied by the Ombudsman, the veritable knight in shining armour whose role is to bridge the gap between the dispute and the issue of court proceedings, providing vital access to justice to those otherwise disenfranchised. Having received recent judicial consideration by Senior Master Fontaine in the case of Hamon v UCL[v], the various advantages of the Ombudsman model, were cited.
That an Ombudsman falls within the ambit of ADR procedures that were envisaged by Lord Woolf in his Access to Justice report[vi] is well accepted and it is to be welcomed that this has been reaffirmed by the Civil Justice Council in its recent, final report on the Pre-Action Protocols in which the relevant Ombudsman scheme is cited as one of the steps in which the parties are required to engage prior to issuing proceedings[vii]. However, an Ombudsman plays a bigger role than case resolution. It was recognised importantly within that judgement, which was considering a stay to enable ADR, previously resisted by the Claimants, to be considered, that an Ombudsman has the advantage of being able to produce outcomes that are “more flexible, constructive and acceptable to both sides”[viii]. Although certain concerns regarding surge and legal complexities, were raised, it is well established within the Ombudsman sector that these can be overcome and other advantages of the model should not be underplayed, for example, being free for complainants to use, they represent a crucial antidote to what is “fast becoming a luxury of legal advice and representation”[ix].
That the civil justice sector is in a period of flux is undeniable, but within this opportunity, we need to see improvements and a big-picture approach to real and lasting change. Defining and understanding the current void, is crucial for the civil justice sector in order for it to absorb its own feedback and provide a clear route for parties to access justice, using trusted and established routes to the courts, if that is their ultimate end-game, for the parties having genuinely exhausted other avenues or for cases which require judicial consideration. Several private sector Ombudsman schemes have already innovated and stand ready to share their insight, knowledge and unique understanding of how their sectors work with policymakers, regulators, the civil justice system and more widely. Working collaboratively to understand this no-man’s land, Ombudsman can map clear pathways, accessible to all, bring value-add to restore trust and consumer confidence. If the current policy thinking is to focus on dispute resolution as “integrated”, as opposed to “alternative”, the role of the Ombudsman as the real alternative before court proceedings are contemplated, should be championed, not just by those within the Ombudsman sector, but also those who could and, arguably should already, benefit from the presence of an Ombudsman.