Dispute Resolution Outside of Courts: Procedural Justice and Decision Acceptance Among Users of Ombuds Services in the UK

• Date: 01 December 2016
• DOI: http://doi.org/10.1111/lasr.12234
• Published date: 01 December 2016

Dispute Resolution Outside of Courts: Procedural

Justice and Decision Acceptance Among Users of

Ombuds Services in the UK

Naomi Creutzfeldt Ben Bradford

Attitudes toward legal authorities based on theories of procedural justice have

been explored extensively in the criminal and civil justice systems. This has

provided considerable empirical evidence concerning the importance of trust

and legitimacy in generating cooperation, compliance, and decision accep-

tance. However,not enough attention has been paid to attitudes towards insti-

tutions of informal dispute resolution. This paper asks whether the theory of

procedural justice applies to the alternative dispute resolution context, focus-

ing on ombuds services. What are the predictors of perceptions of procedural

justice during the process of dealing with an ombuds, and what factors shape

outcome acceptance? These questions are analyzed using a sample of recent

ombuds users. The results indicate that outcome favorability is highly corre-

lated with perceived procedural justice, and both predict decision acceptance.

This paper contributes to the literature on procedural justice

by applying it to a new context—ombuds services. The ombuds,

an established form of alternative dispute resolution (ADR), is an

important pathway to redress outside of the national court system

in many countries around the world. Despite being a well-

established institution in the public sector, the ombuds has only

developed in the private sector over the past 20 years. As such,

the ombuds landscape is an understudied area. In particular,

little is known about people’s expectations of—and satisfaction

with—ombuds services; in fact, before now no comparable data

across different services has been available. This paper contrib-

utes toward filling this void with what is, to our knowledge, a

unique dataset—a survey of recent users of ombuds services.

Through this data, we are able to advance understanding of peo-

ple’s attitudes toward this form of ADR and explore the factors

The term ombuds is chosen here as a gender neutral term to describe public and private

organisations that deal with people’s complaints about public bodies and businesses, out-

side of the courts, in the UK. We did not, however,change the names of the “ombudsmen”

bodies in the UK.

Please direct all correspondence to Naomi Creutzfeldt, ESRC Research Fellow, Lectur-

er in law, University of Westminster, London, UK; e-mail: n.creutzfeldt@westminster.ac.

uk.

Law & Society Review, Volume 50, Number 4 (2016)

V

C2016 Law and Society Association. All rights reserved.

985

that shape acceptance of the outcomes ombuds provide. Using

Tyler’s procedural justice model as a lens through which to view

the data, our analysis provides valuable insight not only for build-

ing and expanding the existing procedural justice literature, but

also for informing policy decisions in this area.

Justice systems vary considerably and each jurisdiction has its

own approach to defining how people can legally resolve dis-

putes. This provides both challenges and opportunities for access

to justice. The concept of access to justice has a number of nuan-

ces; however, on a principal level the aim is to ensure effective

access to an independent dispute resolution mechanism. In this

context, ADR is an additional pathway to resolve disputes without

invoking formal processes of law, and the ombuds is the most

established model of ADR in Europe. Indeed, the institution has

become increasingly popular over recent decades, to the point

where it is now a highly significant and permanent feature of

legal systems in many parts of the world, with many countries

having both public sector and private sector ombuds. European

Union (EU) level requirements for member states to have ADR

bodies in place to ensure consumer protection (ADR directive

1

and ODR regulation

2

) are a high priority. The ombuds landscape

throughout EU member states presents a variety of institutional

and jurisdictional arrangements, operational styles and decision-

making processes (Creutzfeldt 2013; Hodges, Ben€

ohr, and

Creutzfeldt-Banda 2012; Hodges and Creutzfeldt 2013), though in

this paper we concentrate on just one set of services, those oper-

ating in the UK.

Despite the significance of ombuds to European constitutional

and civil justice landscapes, little is known about users’ percep-

tions of the fairness of procedures and the significance of these

perceptions for legitimacy and decision acceptance within this

context. Research into these issues is particularly timely due to

the current emphasis within UK government policy on saving

money in the administration of justice—specifically by avoiding

the courts and focusing on alternative pathways toward dispute

resolution. Further, the UK government plans to merge existing

public sector ombuds into a unified ombudsman model,

3

which

makes this research highly relevant for both public and private

sector ombuds. In this paper, we concentrate on the question of

1

Directive 2013/11 O.J. 2013 L 165/63 and amending Regulation (EC) No 2006/2004

and Directive 2009/22/EC (Directive on consumer ADR) O.J. 2009 L 110/30.

2

Regulation (EU) 524/2013 on online dispute resolution for consumer disputes and

amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on con-

sumer ODR) O.J.L 165/1.

3

https://www.gov.uk/government/consultations/public-service-ombudsman.

986 Dispute Resolution outside of Courts

decision acceptance, exploring what motivates people to accept

the decisions of ombuds.

Ombuds Services in the UK

Ombuds deal with complaints from ordinary citizens and con-

sumers about most public bodies, and the provision of goods and

services in the private sector (e.g., telecoms, financial services,

energy). The underlying purpose behind the creation of ombuds

services was an attempt to even out the power imbalance between

the individual and the state, and between the individual and a

business. The services provided by ombuds are free of charge to

citizens, meaning that ombuds are accessible to individuals who

could not afford a court case. Different ombuds have different

mandates and, within those mandates, different powers. Crucially,

they are impartial and independent from the public body or busi-

ness under their jurisdiction. Public sector ombuds are funded

through public funds, while private sector ombuds are funded

through a combination of public funds and businesses’ member-

ship fees. Typically, they deal with individual cases but can also

undertake investigations into multiple complaints about the same

problem. Ideally, ombuds aim to find solutions to complaints

without having to resort to formal investigations (public sector)

or recommendations (private sector).

A private sector ombuds has the power to issue binding deci-

sions on businesses under their jurisdiction (i.e., their members).

Public ombuds, conversely, have only the power to make non-

binding recommendations to the public bodies complained about.

Despite this difference, it has been noted that “in essence an

industry ombudsman pursues many of the same objectives as

their pubic law counterpart and is subject to many of the same

advantages and criticisms” (Stuhmcke 1998). Both public and pri-

vate ombuds provide a dispute resolution service that is made up

of different stages, and an ombuds can provide a range of ADR

techniques to help the consumer and the business, or the citizen

and the public body, to come to an agreement (Creutzfeldt 2013).

The aim of an ombuds process is to provide an accessible, fast,

free, and fair process for the consumer to get redress. Most cases

are resolved at an early stage through intervention by the

ombuds between the individual and the business (private sector)

or a government agency (public sector). As noted though, in

some cases the ombuds goes beyond the negotiator or mediator

role, and can issue binding decisions. Anecdotally, the ombuds

report a high compliance rate with their recommendations from

companies or public bodies (even when they are not binding).

Creutzfeldt & Bradford 987