My recent book Ombudsmen and ADR: a comparative study of informal justice in Europe (Palgrave Macmillan 2018) is about how ordinary people experience part of the informal justice system. My focus is on ombudsmen as providers of alternative dispute resolution (ADR). ADR has been promoted throughout the EU as a fast, accessible, and cheap means to access justice for consumer to business (c2b) disputes. EU legislation on consumer ADR (2013/11/EU) and online dispute resolution (ODR) (524/2013) has been implemented to strengthen and protect consumers purchasing in the European internal market.
My book explores the consciousness of consumers around alternatives to formal legality, as legality constructs ideas about justice in our everyday lives. While the laws on ADR/ODR were being implemented into national legislation I was keen to explore what users of ombudsman bodies expect from an ADR procedure. Looking at this fairly new institution I explored what makes users trust ADR and what legitimizes it and how they make sense of it. Based on an original empirical dataset of just under 2,300 recent users of ombudsman bodies in the UK and Germany I tested theories of procedural justice and legal consciousness.
I studied fairness perceptions through quantitatively exploring procedural justice. I measured and analysed people’s perceptions of an ombudsman process through surveys. Additionally, qualitative considerations (interviews and focus groups) uncovered different (cultural) approaches and fairness perceptions of ADR. My data suggests that the way people view ombudsman bodies is informed by their assumptions about legality. These assumptions are formed by our legal socialization. Put differently, how people construct legal attitudes influences their expectations of a system providing redress—spilling over into the informal dispute resolution space. In this context, I explored legal consciousness as means to uncover cultural specificities of disputing behaviour.
In the book, I asked how everyday assumptions about law and perceptions of fairness guide our expectations of informal justice, and argued that the relationships people have with the informal justice system are shaped by their experiences and preconceptions about how the (formal) legal system and its agents behave and fulfil that role. As a result, expectations of providers of informal justice are prone to being unrealistic.
In both the UK and Germany, I found that users care about procedural justice. However, there are national distinctions. These distinctions, I argue, have a cultural make-up. When asking users (the same range of questions) about their expectations of an ombudsman process, a UK user typically cares more about being heard and getting an apology in the process, whereas German users reported that getting their money back and getting what is legally theirs as most important factors in the complaints procedure. Informed by the empirical dataset, I conclude that a German user of ADR, used to a well-functioning and efficient court system, will have similar expectations of the ADR bodies. This is reinforced by the institutional set-up of most ombudsmen being a retired judge and their case handling staff being trained lawyers. The opposite is the case in the UK. A UK user is used to having a, relatively speaking, inefficient court system for c2b disputes with unpredictable costs and outcomes. Therefore, trust in ADR is built through an institutional set-up which does not even attempt to emulate the courts. As opposed to the German example, most ombudsmen and their staff in the UK are not legally trained and come from a range of professional backgrounds.
The findings lead me to recommend that ADR providers pay more attention to their users’ needs through focusing, among other things, on the initial contact and implementing procedural justice measures—within a given culturally specific context. This means: making sure consumers feel heard, have a voice, are dealing with someone who is impartial, and can trust the process. These findings potentially challenge the original purpose of consumer ADR—it is meant to be a quick, cheap and accessible solution to sort consumers’ grievances with businesses. This is made possible through a mainly electronic and digital interaction, ideally cutting out humans. However, my research has shown, especially the more complex a problem is, that a consumer values human interaction and clear guidance through the process. Accordingly, the consumer may even decide to take the case to a court, if that better accords with these values. This poses the challenge of how to design a dispute resolution system in the digital age that is adequate to meet its diverse users’ needs. When designing an ADR process (online or offline), it is important to consider the perceptions and expectations of its users.
Naomi Creutzfeldt is Senior Lecturer at the University of Westminster and Associate Fellow at the Centre for Socio-Legal Studies at the University of Oxford.