Recommendations
on employment
problems in Tunisia

2.5 Organisational-ombusman

Guideline for employment problems / RESOLVING: 2.5 Organisational-ombusman

Most plausible interventions

During the orientation process of the available literature, we identified the following interventions as most plausible for discrimination on the work floor disputes:

An organisational ombudsman (OOs) is a senior manager designated by the employer as an independent neutral who reports to the highest possible level in the given organisation. OOs are both conflict management professionals and risk management professionals. They are required by their standards of practice to maintain confidentiality to the maximum extent consonant with law and to resist testifying in formal procedures inside or outside their organisation. Most practising OOs endeavour to meet the international ombuds association’s standards of practice and code of ethics regarding independence, neutrality, confidentiality and informality ^[1].

An organisational ombuds may be found in the public or private sector and ordinarily addresses problems presented by members, employees, or contractors of an entity concerning its actions or policies ^[2]. The ombuds often work to help resolve conflicts on an informal level for the organisation, using a range of methods from conflict coaching to informal mediation ^[3] for that people may wrongly typecast the organisational ombuds person as an arbitrator or formal investigator — or even as a criminal investigator. Others incorrectly think of them as advocates in the sense of a lawyer or union steward. In fact, OOs have essentially all the functions of any conflict management specialist except those of being a formal factfinder for disciplinary purposes, a judge, an arbitrator or an advocate.

The first task of an ombudsperson is to foster values and behaviour such as fairness, equity, justice, equality of opportunity, and respect. Another task is to help constituents understand and use the organisation’s risk management and conflict management systems whenever they need them ^[4].

The mediator is an impartial third party who helps two or more people in dispute to attempt to reach an agreement. The mediator is in charge of the process of seeking to resolve the problem but not the outcome. Mediators may be employees trained and accredited by an external mediation service who act as internal mediators in addition to their day jobs. Or they may be from an external mediation provider. This may include persons such as lawyers, counsellors or advisors. This is usually the case if the mediation is connected to a private lawsuit (legal match website). They can work individually or in pairs as co-mediators ^[5].

The types of workplace issues that a mediator resolves could include those around work or management styles such as interpersonal conflict, perceived discrimination, harassment or bullying, inappropriate behaviour or language ^[6].

How the mediator conducts the mediation process:

in the first stage, the mediator has a private meeting with each separate party. At each of these initial meetings. The mediator asks those involved to discuss in detail how they see the situation and what they feel about it. The main issues involved are clarified and ways of resolving them explored.
meetings: these meetings can only take place if the mediator and parties involved choose to participate and agree to the meeting arrangements and procedures. When facilitating these meetings, the mediator ensures that they are safe and controlled, allowing those involved the opportunity to speak and to respond to the issues raised. Each of the parties involved is then given an opportunity to speak about the situation, without being interrupted. The issues to be discussed at the meeting are clarified and confirmed. The mediator works through these issues with the parties, helping them to communicate, negotiate and work towards their own agreement.
in the final process, any agreement reached is the responsibility of the parties themselves and is not legally binding ^[7].

The ombudsman has proven to be a promising intervention and has been praised by several scholars in resolving and mitigating workplace disputes by using different tools to solve the problem such as mediation. This is what makes it interesting to compare it with the mediator role and tools in resolving a workplace dispute.

PICO question

For parties to a discrimination on the work floor dispute, is organisational ombudsman or mediator more effective for well-being?

Search strategy

The databases used are: HeinOnline, Wiley Online Library, JSTOR, IOA website, and ResearchGate.

For this PICO question, keywords used in the search strategy are: ombudsman, organisational ombudsman, discrimination, workplace disputes, mediator, mediation.

Assessment and grading of evidence

The main sources of evidence used for this particular subject are:

Mary Rowe, Timothy Hedeen, Jennifer Schneider, "What Do Organizational Ombuds Do? And Not Do?", International Ombudsman Association (IOA), 2020.
Tom Sebok et Mary Chavez Rudolph, "Cases Involving Allegations of Workplace Bullying: Threats to Ombuds Neutrality and Other Challenges," Journal of the International Ombudsman Association, vol. 3, no. 2, 2010.
J. Katherine Moore, "Enhancing Ombudsman Practice and Outcome: Stage Model of Change and Motivational Interviewing," Journal of the International Ombudsman Association, vol. 7, no. 2, 2014.
Katherine A. Welch, "No Notice Is Good News: Notice under the New Ombuds Standards for the Establishment and Operation of Ombuds Offices," Journal of Dispute Resolution, 2005.
Mary P. Rowe, "What Is It Like to Be an Organizational Ombudsman?", Perspectives on Work, vol. 1, no. 2, 1997, pp. 60-64.
John S. Barkat, "Blueprint for Success: Designing a Proactive Organizational Ombudsman Program," Journal of the International Ombudsman Association, vol. 8, no. 1, 2015.
Evelyn Addison-Laurie, "The Role of an Ombudsman in Mitigating Conflict," Walden University, 2017.
Scott Deyo et Kevin Jessar, "Applying the Ombuds Role to Your Organization," prepared for the ABA Section of Labor and Employment Law 9th Annual Conference, November 2015.
Naomi Creutzfeldt et Chris Gill, "Policy Brief: Critics of the Ombudsman System: Understanding and Engaging Online Citizen Activists," Centre for Socio-Legal Studies, University of Oxford & Consumer Insight Centre, Queen Margaret University, 2015.
Arun Kumar, "Mediation in Labour Relations," ILO Bangkok.
Dr. Donna McKenzie, "The Impact of Mediation on Workplace Relationship Conflict and Return to Work Outcomes: A Snapshot Review," Institute for Safety, Compensation & Recovery Research, 2012.
Sarah Podro et Rachel Suff, "Mediation: An Approach to Resolving Workplace Issues," Acas, 2013.
"Workplace Mediation Guidelines," Office of Employment Dispute Resolution, Best Practices (rev. 03/19).
Bernadine Van Gramberg et Julian Teicher, "Managing Neutrality and Impartiality in Workplace Conflict Resolution: The Dilemma of the HR Manager," Asia Pacific Journal of Human Resources, vol. 44, no. 2, 2006.
"A Guide to Workplace Mediation," Guideline CIC Wellbeing.
"A Guide to Workplace Mediation," Human Resources Unit D, The Pavilions, Clydach Vale CF40, 2014.
Article, "What Is Employment Mediation?", LegalMatch website: LegalMatch.

Mary Rowe, Timothy Hedeen and Jennifer Schneider explain the need for an ombudsman in an organisation and clarify the different types of ombudsmen, their functions, what they do and do not. They present some answers to these questions derived from many discussions with the organisational ombudsman and from anonymous, self-reported data collected in biennial International Ombudsman Association (IOA) surveys.

Naomi Creutzfeldt and Chris Gill in their policy brief aimed to shed light on a new and rapidly developing phenomenon at a time when ombudsman schemes are taking on an increasingly important role within the justice system and. Through conducting several workshops, they explained and examined the voices that are critical of the system. The policy brief summarises the key points arising from the workshops and sets out some preliminary conclusions with regard to future policy, practice and research.

Mary Rowe in his article he puts in value the functions provided by the ombudsman and the role he plays in a dispute resolution system. He demonstrated the effectiveness of the ombudsman in resolving organisations’ problems in terms of response to the needs of people in conflict.

John S. Barkat in his article explains how organisational ombudsman programs are increasingly recognized as a hallmark and best practice of highly effective organisations. He outlines basic features of the organisational ombudsman role, including its key standards of impartiality, confidentiality, independence, and informality, as well as the three main functions of problem identification and assistance, organisational critical self-analysis, and romotion of conflict competence. The article further elaborates on the hallmarks and practices contributing to the effectiveness of ombudsman programs that not only identify systemic issues and root causes of problems, but also act as catalysts for change to improve the workplace through use of ‘smart power’ and proactive engagement.

Acas with the help of Sarah Podro and Rachel Suff have published an updated guideline on how mediation is a useful process to resolve workplace disputes. They provided a whole approach on the mediation technique; how it is conducted and how to use it to solve the problem.

Dr. Donna McKenzie has concluded in his research paper that. The process of mediation has the potential to be an effective method of resolving psychological injury claims due to workplace relationship breakdown, especially when supported by organisational commitment to ADR strategies, policies and processes, and conducted by independent, skilled mediators.

Quality of evidence and research gap

According to our research method, we grade the evidence comparing organisational ombudsman and mediator as low. Beyond a basic understanding of background diversity amongst mediators, no studies were found that explore differences in mediator practice based on academic and professional backgrounds. However, other fields, such as organisational ombudsman, have explored this topic. Moreover, there is a lack of good quality study designs and insufficient research on mediator intervention. Thus, the evidence downgrades two levels.

Recommendation

Desirable outcomes

Organisational ombudsman	Mediator
The services of an ombudsman relieve HR leaders and managers to handle other pressing issues in the workplace. For example, a corporate ombudsman reduces the need for outside consultants’ and creates value for the company. The corporate ombudsman saves managerial time involving conflict management ^[8].	Create a communication channel between parties, mediators turn adversarial, win-lose negotiation into problem-solving negotiation to enable parties to achieve the best possible outcome – that satisfies their interests. They help them talk to each other in ways that clarify the issues, establish a working relationship and guide the parties towards compromise and collaboration to find resolution; help parties identify their interests/needs (behind their positions/demands) and create options for joint gains for both ^[17].
The corporate ombudsman is instrumental in improving productivity, making a positive impact in talent retention, as well as increasing the possibility individuals might report a claim ^[9].	Mediator ensures confidentiality, a mediator maintains the reasonable expectations of the participants with regard to confidentiality. The participants’ expectations of confidentiality depend on the circumstances of the mediation and any agreements they may make. For example, in order to protect the integrity of the mediation, a mediator avoids communicating information about how the participants acted in the mediation process, the merits of the case, or any particulars leading to the point of agreement ^[18].
The ombudsman preserves neutrality and confidentiality. Ombudspeople usually report at or near the top of the organisation, outside ordinary management channels. This helps to preserve independence and contribute to the effectiveness of the ombudsman ^[10]. Moreover, ombudspeople will not answer questions from anyone, including senior managers, about those with whom they may have had contact. They work to maintain the privacy of everyone with whom they have spoken, unless they have permission to speak in the context of informal problem-solving ^[11]. In order to safeguard the appearance of neutrality and confidentiality, ombuds typically do not appear as witnesses in formal proceedings inside or outside their organisations and do not represent or act formally on behalf of a manager or of the employer ^[12].	Mediator preserves impartiality, a mediator conducts the mediation in an impartial manner. The concept of mediator impartiality is central to the mediation process. A mediator will mediate only those matters in which s/he can remain impartial and even-handed. If at any time the mediator is unable to conduct the process in an impartial manner, the mediator is obligated to withdraw. The quality of the mediation process is enhanced when the participants have confidence in the impartiality of the mediator. For example, a mediator should guard against partiality or prejudice based on the participants’ personal characteristics, background or performance at the mediation ^[19].
The ombudsman is an agent of culture change. Culture change is paramount to the success or failure of an organisation. Understanding culture in an organisation is a difficult task. However, it is important for leaders and employees of an organisation to have mutual respect for one another. The ombudsman seeks to foster transparency, accountability, and responsible culture. Ombudsmen actively publicise the activities of their position, give upward feedback on a regular basis, share annual reports, and work with others as a change agent to identify various problems that may have a negative impact on a corporation. Handling conflicts on a regular basis makes it impossible for ombudsmen to avoid reinforcing their organisation’s culture ^[13].	Mediation ensures a good quality of the mediation process. A mediator conducts the mediation fairly, diligently, and in a manner consistent with the principle of self-determination by the parties. A mediator works to ensure a quality process and to encourage mutual respect among the participants. A quality process requires a commitment by the mediator to diligence and procedural fairness. There should be adequate opportunity for each person in the mediation to participate in the discussions. The participants decide when and under what conditions they will reach an agreement or terminate mediation. For example, a mediator may agree to mediate only when s/he is prepared to commit the attention essential to an effective mediation ^[20].
Mitigating conflicts. The ombudsman may cause a company to avoid litigation, potential jury awards, legal fees, wasted administrative and managerial time, and negative publicity. Some employees file claims against their employer because they want to be heard and have not been treated fairly. Companies who want to be successful must consider utilising the services of an ombudsman in mitigating conflicts ^[14].
Reduce the cost of conflict. The usefulness of ombudsmen is essential, especially in times of economic decline when employers need to increase productivity, cut costs, and foster an environment of fairness and equity to employees and employers. An ombudsman may reduce costs of conflicts among managers and employees due to turnover and time lost handling complaints There may be an increase in productivity and a decrease in costs with the legal staff handling complaints. The ombudsman may lead to cost savings for employers in creating significant changes in conflict management. Resolving issues such as bullying may be cost-effective, especially if the case becomes public ^[15].
Ombuds offers a safe place for employees, showing the organisation’s concern for the ‘community’s health’; by supplementing, not replacing any existing office or function; by encouraging, facilitating, ‘coaching’ communication, or offering referrals especially when communication has become difficult whatever the reason. Assistance can include shuttle diplomacy or mediation. The ombuds can empower the visitor by helping to provide clarity where there has been confusion and options where people might have come in not knowing what to do, enhancing the visitor’s self-image, where vulnerability had reigned. A safe haven encourages workers to discern calmly before acting rashly. It is a good bet that all are better served when people do not act rashly ^[16].

Undesirable outcomes

Organisational ombudsman	Mediator
The ombudsman does not participate in managerial/administrative processes. By virtue of the ombudsman hearing issues firsthand from all parts of the organisation, he is in a privileged position to compile and to add value to these data so the organisation can improve for the benefit of all. By isolating oneself and failing to interact with (or participate in) committees and groups concerning organisational change, the ombudsman loses the opportunity to provide information and understand issues, which can be helpful in any change process ^[21].	Risk of taking multifunction. The primary purpose of a mediator is to facilitate the participants’ voluntary agreement. This role differs substantially from other professional-client relationships. Mixing the role of a mediator and the role of a professional advising a client is problematic, and mediators must strive to distinguish between the roles. A mediator should, therefore, refrain from providing professional advice. A mediator, who undertakes, at the request of the participants, an additional dispute resolution role in the same matter assumes increased responsibilities and obligations that may be governed by the standards of other professions ^[25].
There are potential threats to perceptions of ombuds neutrality. When dealing with specific cases involving allegations of workplace bullying, ombuds interactions with supervisors of alleged bullies and/or other organisational leaders provide very specific threats to the reality as well as the perception of ombuds neutrality. The most obvious of these is in being perceived as biassed against an alleged bully because the ombuds have initiated a discussion with a supervisor or leader about the alleged bully’s behaviour. The ombudsman may be perceived as aligned against the alleged bullying supervisor and advocating for those who have complained ^[22].	Mediator has no authority to impose a resolution of the dispute on the parties. The mediator has no vested interest in the outcome of the mediation; therefore, the mediator encourages the participants to develop their own solutions to the conflict. The mediator does not recommend particular solutions to any of the issues in dispute nor persuade the participants to reach an agreement on any or all of the issues being mediated ^[26].
Lack of accountability. Due to the absence of any effective form of appeal to challenge the decisions of ombudsman schemes. Judicial review was regarded as a very limited and inaccessible form of review. Internal reviews are seen as ‘rubber stamping’ exercises, which were insufficiently robust and gave very little assurance to complainants. Even where ombudsman schemes used ‘independent reviewers’, these provided little accountability because they were paid by ombudsman schemes and their remit concerned administrative and service matters, rather than providing a route of appeal against the substantive decisions of ombudsman schemes. As a result, the quality of ombudsman schemes’ decisions was subject to almost no external oversight ^[23].	Potential conflicts of interest. A conflict of interest is a dealing or relationship that might create an impression of possible bias. The mediator has a responsibility to disclose all actual and potential conflicts that are reasonably known to the mediator and could reasonably be seen as raising a question about impartiality. If all participants agree to mediate after being informed of conflicts, the mediator may proceed with the mediation. If, however, the conflict-of-interest casts serious doubt on the integrity of the process, the mediator shall decline to proceed. For example, potential conflicts of interest may arise between agency representatives and mediators and there may be strong pressures on the mediator to settle a particular case or cases ^[27].
Procedural and practice issues. Some participants queried the robustness of ombudsman schemes’ investigation processes, noting that they were desk based, ‘paper exercises’ and insufficiently inquisitorial. Information provided by the bodies being investigated was often accepted at face value rather than being challenged, even where it was asserted that the complainant had been able to provide irrefutable contradicting evidence. The process was seen as one-sided, with complainants not being made privy to discussions between ombudsman schemes and the bodies investigated. Some participants claimed that one ombudsman scheme shared reports with the body investigated prior to it being shared with the complainant ^[24].	Lack of mediator intervention Mediator/risk of bias. Mediator passivity can allow any existing power imbalances to influence the final outcome of the dispute. The issue of mediator intervention designed to balance power remains a fundamental controversy in the international writings on alternative dispute resolution. Clearly, there is a fine line between process advocacy and a breach of neutrality. This is complicated by the fact that the decision to intervene is based on a value judgement by the mediator. It is the mediator who must assess the relative power difference and act to support the weaker party in order to maximise their input into the discussions ^[28].
	Potential of abstinence/refusal from parties. It is not a mediator’s role to force or persuade people into a settlement. Sometimes, despite their best efforts, it may not be possible for mediators to help people to overcome their differences and resolve the problem. A requirement of most mediation is that participation is voluntary so it is possible that one or both parties may refuse to engage. Other reasons for non-participation include when more powerful parties have stronger rights of refusal. Or a worker may feel they are being forced to take part in mediation, mediators must not only possess the skill to determine the type of mediation appropriate for each case but also to negotiate any barriers to the mediation process ^[29].
	The threat of internal mediation schemes. Internal mediation where an internal mediator is used, the most important consideration is the impartiality of the individual selected. In a small organisation it is clearly more difficult to achieve the same level of detachment as can exist in a large organisation with different sites and departments. If mediators are also union representatives, it may be preferable if they do not mediate between individuals who they might represent in the organisation’s formal procedures in the future. If a mediator is an HR manager, it may not be appropriate for them to mediate in situations where they may have to deal with the same individuals on the same issue but within more formal procedures ^[30].
	The lack of an ombudsman causes managers to spend excessive time mitigating conflicts. A focus on conflicts may result in productivity loss and resource inefficiency, which may cause problems for the HR department ^[31].

Balance of Outcomes

Taken together, the available research suggests that an organisational ombudsman proves to be more efficient in resolving discrimination on the work floor disputes than resorting to a mediator. Even though both preserve neutrality and confidentiality the risk of bias is still more present for the mediator then the other. Actually, Potential conflicts of interest, risk of bias and the threat of internal mediation schemes are only raised when choosing a mediator to resolve the problem. Besides that, the mediator does not strictly determine the end of the agreement as he interferes only to facilitate the communication between two parties and the final decision is still up to the parties.

On the other side, research has shown that the lack of an ombudsman in an organisation causes managers to spend excessive time mitigating conflicts since the focus on conflicts may result in productivity loss and resource inefficiency. Added to this, the ombudsman is known as an agent of culture change who seeks to foster transparency, accountability, and responsible culture inside the organisation.

He also offers a safe place for employees, gives assistance to the employee and even provides training and coaching communication.

The desirable outcomes of organisational ombudsman outweigh those of mediator, and the undesirable outcomes of mediator outweigh those of organisational ombudsman. Therefore, an organisational ombudsman is preferred.

Recommendation

Taking into account the balance of outcomes, the benefits for parties to a [dispute type], and the quality and consistency of the evidence, we make the following recommendation: for parties to a discrimination on the work floor dispute, the organisational ombudsman is more conducive to well-being than the mediator.

View References

^[1] Mary Rowe, Timothy Hedeen, Jennifer Schneider, “What Do Organizational Ombuds Do? And Not Do?”, International Ombudsman Association (IOA), 2020, p. 1.

^[2] Katherine A. Welch, “No Notice Is Good News: Notice under the New Ombuds Standards for the Establishment and Operation of Ombuds Offices,” Journal of Dispute Resolution, 2005, p. 194.

^[3] Smith, J. C. (2007). Mediation and Arbitration Best Practices: Leading Lawyers on Successfully Resolving Disputes through Alternative Dispute Resolution (Inside the Minds). Aspatore Books, p.3.

^[4] Mary Rowe, Timothy Hedeen, Jennifer Schneider, op. cit., p. 2.

^[5] “A Guide to Workplace Mediation,” Guideline CIC Wellbeing, p. 7.

^[6] “A Guide to Workplace Mediation,” op. cit., p. 3.

^[7] “Guideline CIC Wellbeing,” op. cit., p. 2.

^[8] Evelyn Addison-Laurie, “The Role of an Ombudsman in Mitigating Conflict,” Walden University, 2017, p. 43.

^[9] Evelyn Addison-Laurie, op. cit., p. 43.

^[10] Mary P. Rowe, “What Is It Like to Be an Organizational Ombudsman?”, Perspectives on Work, vol. 1, no. 2, 1997, p. 63.

^[11] Mary P. Rowe, ibid., p. 63.

^[12] Mary P. Rowe, ibid., p. 64.

^[13] Evelyn Addison-Laurie, op. cit., p. 36.
^[14] Evelyn Addison-Laurie, op. cit., p. 37.
^[15] Evelyn Addison-Laurie, op. cit., p. 42.
^[16] J. Katherine Moore, “Enhancing Ombudsman Practice and Outcome: Stage Model of Change and Motivational Interviewing,” Journal of the International Ombudsman Association, vol. 7, no. 2, 2014, p. 108.

^[17] Arun Kumar, “Mediation in Labour Relations,” ILO Bangkok, p. 6.

^[18] “Workplace Mediation Guidelines,” Office of Employment Dispute Resolution, Best Practices (rev. 03/19), p. 8.

^[19] “Workplace Mediation Guidelines,” ibid., p. 7.

^[20] “Workplace Mediation Guidelines,” ibid., p. 8.

^[21] John S. Barkat, “Blueprint for Success: Designing a Proactive Organizational Ombudsman Program,” Journal of the International Ombudsman Association, vol. 8, no. 1, 2015, p. 53.

^[22] Tom Sebok et Mary Chavez Rudolph, “Cases Involving Allegations of Workplace Bullying: Threats to Ombuds Neutrality and Other Challenges,” Journal of the International Ombudsman Association, vol. 3, no. 2, 2010, p. 28.

^[23] Naomi Creutzfeldt et Chris Gill, “Policy Brief: Critics of the Ombudsman System: Understanding and Engaging Online Citizen Activists,” Centre for Socio-Legal Studies, University of Oxford & Consumer Insight Centre, Queen Margaret University, 2015, p. 5.

^[24] Naomi Creutzfeldt et Chris Gill, op. cit., p. 6.

^[25] “Workplace Mediation Guidelines,” Office of Employment Dispute Resolution, op. cit., p. 10.

^[26] “Workplace Mediation Guidelines,” ibid., p. 10.

^[27] “Workplace Mediation Guidelines,” ibid., p. 7.

^[28] Bernadine Van Gramberg et Julian Teicher, “Managing Neutrality and Impartiality in Workplace Conflict Resolution: The Dilemma of the HR Manager,” Asia Pacific Journal of Human Resources, vol. 44, no. 2, 2006, p. 203.

^[29] Dr. Donna McKenzie, “The Impact of Mediation on Workplace Relationship Conflict and Return to Work Outcomes: A Snapshot Review,” Institute for Safety, Compensation & Recovery Research, 2012, p. 10.

^[30] Sarah Podro et Rachel Suff, “Mediation: An Approach to Resolving Workplace Issues,” Acas, 2013, p. 26.

^[31] Evelyn Addison-Laurie, op. cit., p. 43