Balancing Confidentiality and Transparency in an Ombudsman Mediation Service
Background:
This research, part-funded by the Financial Services and Pensions Ombudsman, was undertaken over a seven month period in 2017 and sought to inform public providers of mediations services as to the challenge of balancing confidentiality and transparency.
What is an Ombudsman?
An Ombudsman is an objective, impartial person, usually in a position of authority, whom people can approach in strict confidence- and therefore safely – with complaints of unfair or improper treatment. An Ombudsman can be internal to an organisation or operate at sector/state level. The term is is gender-neutral in origin and is used by the International Ombudsman Association (IOA) to communicate to the widest possible community.
What ADR processes do ombuds favour?
- Informal-formal approach
- Mediation/conciliation followed by investigation/adjudication
- Mediative-type rather than ‘pure’
Methodology
- Literature review
- Desk review of international best practice
- Survey and interviews with comparators*
*FOS UK, Financial Services Complaints Ltd NZ, General Insurance Ombuds Canada, Insurance and Financial Services Ombuds NZ, Ombuds for Banking Services and Investments Canada, Labour Relations Agency NI, Workplace Relations Commission, Residential Tenancies Board
Themes emerging from the literature
- Ombuds are moving towards informal processes especially mediation
- A dialectic tension exists between confidentiality and transparency as naturally occurring oppositional poles
- Boundaries are context-determined
- Threats to confidentiality should be assessed and contingency plans developed
Main findings from the comparator reviews
- Exceptions to confidentiality are context determined.
- Common threats to confidentiality are legal action, public scandal and the imminent risk of harm.
- Breaching confidentiality should be treated as a last resort.
- All organisations have disclosure responsibilities.
- Organisations agree the boundaries in advance.
- A proactive approach is required. Policies and CoPs are important.
- A pragmatic approach that is flexible and person-centered, and focused on producing a mutually acceptable outcome that is fair.
Implications of these findings for FSPO and for ombuds/mediation services
- Shift towards the informal generally and mediation specifically is supported by this research
- Confidential is an essential element of mediation and need to be protected
- Have a policy in place
- Agree the boundaries in advance
- Identify potential threats to confidentiality via a risk assessment and devise plans