Resolving Third-Party Objections to Arbitral Subpoenas Under the Federal Arbitration Act: A Suggested Approach

courtroomBy Peenesh Shah*

I. Introduction

Under Section 7 of the Federal Arbitration Act, arbitrators are empowered to subpoena third parties. When a subpoenaed third party objects, however, courts are enlisted to resolve the objection—and, when appropriate, to enforce the subpoena. Should these courts allow arbitrators to manage such disputes at the outset, considering the objection only after an arbitrator has ruled unfavorably to the objecting party? This approach is not clearly the norm under the FAA, but it is nevertheless appropriate under a fair reading of the FAA and the Federal Rules of Civil Procedure. Moreover, it is advantageous from a policy standpoint.

II. Statutory Framework

Section 7 of the FAA grants arbitrators the power to “summon . . . any person . . . as a witness.”[1] This provision further allows arbitrators to enforce such a summons “in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.”[2]

Accordingly, Federal Rule of Civil Procedure 45, which deals with subpoenas in traditional litigation, also governs a Section 7 summons, or arbitral subpoena. Rule 45 protects subpoena recipients by precluding the issuing party from imposing an undue burden.[3] The rule also allows, and sometimes requires, courts to quash subpoenas under certain circumstances.[4] Finally, the Rule specifies that a court must quash a subpoena if it subjects a person to undue burden or requires disclosure of privileged matter.[5]

III. Objections to Third-Party Arbitral Subpoenas: Not “Ripe” Until a Party Seeks Judicial Enforcement

Despite Section 7’s provision allowing enforcement in the “same manner” as litigation subpoenas,[6] arbitral subpoenas operate differently from litigation subpoenas. Importantly, an arbitrator’s subpoena is not self-enforcing,[7] meaning that an objecting non-party recipient need not comply, leaving the requesting party to seek judicial enforcement.[8] The FAA does not require objecting third parties to move to quash,[9] but it is unclear whether they may be allowed to do so.[10] Nothing in the statute expressly requires courts to hear such motions to quash,[11] though perhaps a court must do so because an arbitrator’s subpoena is governed by Rule 45.

Yet, precisely because an arbitrator’s subpoena is not self-enforcing, such a dispute is arguably not “ripe” until the arbitrator seeks to enforce it over the non-party’s objections. Because a federal court may only hear “ripe” disputes,[12] a court should refuse to hear a motion to quash until a party to the arbitration petitions the court to compel compliance.

That is, the arbitrator should hear the objection in the first instance, and if his (non-binding) determination is not to sustain it, he should then move to compel. At that time, a court would make a de novo ruling on the objection. Full judicial review, in a form analogous to interlocutory appeal, allows a court to benefit from the arbitrator’s knowledge of the merits while maintaining protection of third-party rights.

IV. Why Adopt This Approach?

As a general matter, this approach is advisable for some of the same reasons that administrative law often imposes an analogous exhaustion requirement—specifically, promoting judicial efficiency and protecting the authority of the body deciding the merits.[13]

More importantly, the arbitrator is uniquely competent to resolve objections that often raise issues closely related to the merits of the dispute. Two common grounds for challenging a discovery subpoena under Rule 45 are relevance and privilege, both of which require reference to the underlying dispute. In typical litigation, for example, relevance[14] is inextricably related to the pleadings,[15] suggesting that in arbitration, these objections are best resolved by the arbitrator. Similarly, when privilege[16] is invoked in litigation, a court will balance the need for the subpoenaed information against the public interest protected by the privilege.  This balancing inquiry will necessarily reference the merits of a dispute.[17] To be fair, courts may be better positioned, for reasons of consistency and accountability, to properly protect the interests underlying various privilege doctrines; nevertheless, courts would certainly benefit from an arbitrator’s insight into the merits and the evidentiary needs of the dispute.

V. Statutory Authority for The Suggested Approach Under FAA

The FAA does not clearly proscribe the suggested approach. Some trial courts have adopted this approach,[18] while others have heard motions to quash in the first instance.[19] The issue is complicated by the common practice of taking these disputes to court on cross-motions to quash and compel,[20] a practice which suggests a generally held assumption that a court may hear a motion to quash in the first instance.

Of course, the suggested approach requires that arbitral subpoenas not be self-enforcing, which seems statutorily inappropriate in view of Section 7’s provision that, upon petition, a court may punish a person for contempt if the person neglects or refuses to comply with the arbitral subpoena.[21]

However, this provision should be read as allowing a court to punish for contempt only after issuing an order compelling compliance. This reading comports with the framework of Rule 45, which provides certain excuses allowing a person to ignore a subpoena.[22] The rule allows a person commanded to produce documents to reply to a subpoena with a written objection,[23] which excuses obeying the subpoena.[24] Similarly, the rule excuses production of electronically stored information from sources that are not reasonably accessible.[25] A requesting party may respond to these excuses by asking the court to compel compliance,[26] not unlike the FAA’s approach for compelling compliance with arbitral subpoenas.

Thus, Rule 45 establishes a framework where, if the court has the power to compel compliance, punishment for contempt may occur only after exercise of that compulsion power.[27] Reading Section 7 as mimicking this framework—requiring a successful petition to compel before a person may be punished for contempt—makes good sense. Indeed, the Fourth Circuit seems to have adopted this interpretation, holding that the recipient of an arbitral subpoena is under no obligation to challenge the subpoena,[28] implying that the person cannot be punished for contempt if he does nothing.

VI. Current Trends

Despite some earlier decisions in which the court ruled on relevance,[29] the emerging consensus is deference to arbitrators on this question.  The Sixth Circuit has noted the limited nature of a court’s power to disturb an arbitrator’s judgment as to relevance.[30] The Eighth Circuit has stated that second-guessing an arbitration panel’s judgment as to materiality is “antithetical to the well-recognized federal policy favoring arbitration, and compromises the panel’s presumed expertise in the matter at hand.”[31] The Northern District of Georgia has ruled that the determination of materiality to the underlying dispute belongs to the arbitrator.[32]

As discussed above, a court has a greater role to play in resolving privilege objections. Accordingly, even as courts seem willing to defer to arbitrators on relevance, some are more active in their review of questions of privilege.[33] Others, however, have deferred to arbitrators on this point.[34]

VII. Conclusion

The FAA intends to encourage and foster effective arbitration. The proposed scheme serves this goal by broadening the implementation of arbitrators’ power to subpoena third parties. Because the scheme is not contrary to the text of the FAA, its adoption need not wait for legislative action. While the proposed approach has already been accepted in some measure, arbitral outcomes would benefit from further judicial adoption.

*Peenesh Shah is a student at The University of Texas School of Law. He will receive his Juris Doctor degree in May 2010. Thanks to Professor Alan S. Rau for guidance and helpful comments.

[1] 9 U.S.C. § 7 (2006) (emphasis added).

[2] Id.

[3] See Fed. R. Civ. P. 45(c)(1).

[4] See Fed. R. Civ. P. 45(c)(3).

[5] See Fed. R. Civ. P. 45(c)(3)(A)(iii)-(iv).

[6] See 9 U.S.C. § 7 (2006).

[7] See Unif. Arbitration Act § 17 cmt. 8 (2000).

[8] Id.

[9] COMSAT Corp. v. NSF, 190 F.3d 269, 276 (4th Cir. 1999) (“once subpoenaed by an arbitrator the recipient is under no obligation to move to quash the subpoena”).

[10] See infra note 19.

[11] See Odfjell ASA v. Celanese AG, 348 F. Supp. 2d 283, 288 (S.D.N.Y. 2004) (“the FAA nowhere explicitly gives a person subpoenaed to an arbitration the right to move in a federal district court to quash the subpoena”).  But see infra note 19.

[12] See U.S. Const. art. III. For an analysis of the constitutional and prudential dimensions of ripeness, see Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L. Rev. 153 (1987). The arguments presented here, however, are of equal force regardless of whether one views ripeness as a constitutional or prudential matter.

[13] For an excellent discussion of these policy concerns, see McCarthy v. Madigan, 503 U.S. 140, 144-46 (1992) (“The exhaustion doctrine also acknowledges the commonsense notion of dispute resolution that [a decision-maker] ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.”).

[14] Though Rule 45 does not discuss relevance as grounds for objection, courts tend to incorporate, either explicitly or implicitly, the Rule 26(b)(1) standard into Rule 45’s undue burden test. See 9 James Wm. Moore et al., Moore’s Federal Practice ¶ 45.03[1] (3d ed. 2009); Fed. R. Civ. P. 26(b)(1); see also Sterling Merch., Inc. v. Nestle, S.A., 2008 U.S. Dist. LEXIS 31938 (D.P.R. Apr. 15, 2008) (applying the Rule 26 relevance standard to a motion to quash, under Rule 45, a subpoena for imposing an undue burden); Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y. 1998) (“The reach of a subpoena issued pursuant to Fed. R. Civ. P. 45 is subject to the general relevancy standard applicable to discovery under Fed. R. Civ. P. 26(b)(1).”); Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (Kan. 2003) (“Fed. R. Civ. P. 45 does not include relevance as an enumerated reason for quashing a subpoena. It is well settled, however, that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26(b). . .”).

[15] See, e.g., Bariteau v. Krane, 206 F.R.D. 129, 131 (W.D. Ky. 2001) (finding, in traditional litigation, after examining the individual claims in the plaintiff’s complaint, that materials requested by subpoena were relevant), Barkan v. Dunkin’ Donuts, Inc., 2008 U.S. Dist. LEXIS 34608 (D.R.I. Apr. 28, 2008) (quashing a subpoena as overly broad where plaintiff pleaded two theories of damages, but one was disallowed, and the request did not specify which materials were relevant to liability, or which materials were relevant to which damage theory).

[16] Unlike the relevance requirement, the privilege exception is expressly contained in Rule 45. Fed. R. Civ. P. 45(c)(3)(A)(iii). However, it is important to recognize that Rule 26 is also operative – a person seeking to avoid a subpoena on this basis may obtain a protective order under Rule 26(c). See Moore et al., supra note 14, ¶ 45.30. Also, the standards of privilege under Rule 45 and Rule 26 may overlap. See Mannington Mills, Inc. v. Armstrong World Indus., 206 F.R.D. 525, 529 (D. Del. 2002) (“A nonparty moving to quash a subpoena, in essence, is the same as moving for a protective order that such discovery not be allowed.”).

[17] See In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 613-614 (E.D. Va. 2008) (declining to reach the merits of the privilege claim asserted by non-parties in response to a subpoena, because the court in which the action was pending was better positioned to determine whether the information requested by subpoena was privileged as it pertained to claims and defenses associated with that action).

[18] E.g., Fed. Ins. Co. v. Law Offices of Edward T. Joyce, P.C., 2008 U.S. Dist. LEXIS 20713 (N.D. Ill. Mar. 13, 2008) (motion to quash third-party subpoena based on irrelevance, privilege, over-breadth, and timeliness raised issues that should not be decided by a court in the first instance, but rather by arbitrator). Notably, the Supreme Court of California has recently adopted an approach very similar to what this paper suggests, albeit in a case governed by California’s arbitration statute, which uses language somewhat broader than what is found in the FAA. See Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P., 187 P.3d 86 (Cal. 2008).

[19] See, e.g., Integrity Ins. Co. v. American Centennial Ins. Co., 885 F. Supp. 69, 71-72 (S.D.N.Y. 1995) (noting that “the court may also consider a petition to quash; there is no requirement that a petition to compel be made first,” citing Commercial Metals Co. v. International Union Marine Corp., 318 F. Supp. 1334 (S.D.N.Y. 1970)), abrogated on other grounds by Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 215 (2d Cir. 2008).

[20] See, e.g., Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 214 (2d Cir. 2008).

[21] 9 U.S.C. § 7 (2006).

[22] Fed. R. Civ. P. 45(e) (a person may be punished for contempt if he, “having been served, fails without adequate excuse to obey the subpoena”) (emphasis added).

[23] Fed. R. Civ. P. 45(c)(2)(B).

[24] See Moore et al., supra note 14, ¶ 45.41[2][b]; see also Bariteau v. Krane, 206 F.R.D. 129, 131-32 (W.D. Ky. 2001) (noting the prevailing view that timely objection to a subpoena constitutes adequate excuse, and denying motion to hold subpoena subject in contempt, but also issuing order to compel compliance with same subpoena, and advising serving party that he may renew motion for contempt upon noncompliance with said order).

[25] Fed. R. Civ. P. 45(d)(1)(D).

[26] Fed. R. Civ. P. 45(c)(2)(B)(i), 45(d)(1)(D).

[27] Indeed, there is some authority, though not a consensus, that an order compelling compliance is a general prerequisite to an order punishing for contempt. See Moore et al., supra note 14, ¶ 45.62[3].

[28] See COMSAT Corp. v. NSF, 190 F.3d 269, 276 (4th Cir. 1999).

[29] See Oceanic Transport Corp. v. Alcoa S.S. Co., 129 F. Supp. 160, 161 (D.N.Y. 1954) (vacating subpoena served on third party witness in arbitration proceeding, noting that “it is a fact that when the statute imposed upon the District Court the duty to determine whether or not to compel the attendance of a witness and his production of papers, it imposed upon the Court the duty to determine whether or not the proposed evidence is material.”); see also Reuters Ltd. v. Dow Jones Telerate, 231 A.D.2d 337, 344-45 (N.Y. App. Div. 1st Dep’t 1997) (reversing, under New York state law, lower court’s granting of a motion to compel an arbitral subpoena on a non-party because requested materials were relevant to the theory raised in the arbitration).

[30] American Fed’n of TV & Radio Artists v. WJBK-TV, 164 F.3d 1004, 1010 (6th Cir. 1999) (finding error where the district court had refused to enforce a subpoena against a third party because the requested material was irrelevant); see also Meadows Indem. Co. v. Nutmeg Ins. Co., 157 F.R.D. 42, 44 (M.D. Tenn. 1993) (refusing to second guess an arbitration panel’s determination as to relevance when denying non-party’s motion for protective order filed in response to an arbitration panel’s subpoena).

[31] Sec. Life Ins. Co. of Am. v. Duncanson & Holt (in Re Sec. Life Ins. Co. of Am.), 228 F.3d 865, 871 (8th Cir. 2000) (affirming an order enforcing a subpoena issued by an arbitration panel, ruling that whether or not the subject was determined to be a party to the arbitration was irrelevant).

[32] Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006) (referencing Sixth and Eighth Circuit opinions in a ruling compelling two non-party objectors to comply with subpoenas issued in arbitration).

[33] See Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006) (directing relevance objections to arbitrator, but issuing a finding, after reviewing the provided motions and briefs, that the confidentiality concerns were not sufficiently compelling to excuse non-party from compliance with subpoena); Integrity Ins. Co. v. American Centennial Ins. Co., 885 F. Supp. 69, 73 (S.D.N.Y. 1995) (ruling on non-party’s privilege objection because the issue would “doubtless resurface at the arbitration hearing”; held, privilege did not protect requested information), abrogated on other grounds by Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 215 (2d Cir. 2008).

[34] See Odfjell ASA v. Celanese AG, 348 F. Supp. 2d 283, 288 (S.D.N.Y. 2004) (non-party objections on the grounds of privilege “should first be heard and determined by the arbitration panel before whom the subpoena is returnable, and hence, even assuming arguendo that this Court has jurisdiction to consider the motion to quash, the motion must be dismissed at this stage as unripe”); Odfjell ASA v. Celanese AG, 2005 U.S. Dist. LEXIS 729 (S.D.N.Y. Jan. 15, 2005) (same non-party in same underlying case sought to obtain confidentiality order broader than that which was granted by arbitration panel, but the court refused to “disturb the decision of the arbitration panel not to issue a protective order . . . . The panel’s decision is entitled to considerable deference, given the panel’s hands-on familiarity with the case and with the confidentiality issues here presented.”); Odfjell ASA v. Celanese AG, 380 F. Supp. 2d 297, 298 (S.D.N.Y. 2005) (same non-party, same underlying case, but here, the court determined that the arbitration panel had abused its discretion in not allowing non-party to present certain evidence supporting a claim of privilege; rather than ruling on the issue itself, however, the court remanded the issue to the arbitration panel to have the excluded evidence heard).

Originally published to HNLR Online on Mar. 25, 2010.

Managing Cultural Differences In An International Organization Conflict Management System

David Miller, Staff Ombudsman, World Health Organization

Click here to download the full article (pdf)

Conflict management requires recognition that conflict is occurring. However, often there is no such recognition. Boundaries are often violated, behaviourally or verbally, by apparent abusers, harassers or aggressors unaware of the effects of their actions. And some people perceive no constraint on their actions. Sometimes also, those who are injured are not able to understand — or find it hard to name – what has happened. They may not be able to imagine any option for response (see the accompanying Case). Conflict management therefore requires common recognition of principles, standards or codes in which conflict is characterized, and from which solutions, resolutions or remedies may be found.

In organizations founded on the engagement of all cultures and peoples — in the United Nations organizations these are “member states”— and in private or public corporations with international constituencies and offices, conflict management necessitates an architecture of principles upon which, by common assent, behavioural boundaries can be asserted and, from which, behavioural violations of those boundaries can be inferred and characterised. These principles should embody elements that persons of all cultures can recognise, understand and to which they may legitimately aspire. These principles should be reasonably achievable on an individual level. These principles should also inform and guide the various elements of a conflict management system (CMS) — see the attached Chart for examples. The principles are also necessary to enable coordination of such functions into a coherent and functional system.

In 1954, the International Civil Service Advisory Board published the “Standards of Conduct in the International Civil Service” (hereafter referred to in this and their later revision as “the Standards”), with the intention that they,

“…become an indispensable part of the culture and heritage of the [participating specialised and related agencies participating in the UN Common System and other] organizations…” (ICSC, 2002).

As described on their website[2],

The International Civil Service Commission (ICSC) is an independent expert body established by the United Nations General Assembly. Its mandate is to regulate and coordinate the conditions of service of staff in the United Nations common system, while promoting and maintaining high standards in the international civil service. The Commission is composed of fifteen members who serve in their personal capacity. They are appointed by the General Assembly for four-year terms, with due regard for broad geographical representation. The Chairman and the Vice-Chairman are full-time members and are based in New York. The full Commission meets twice a year.”

The 1954 Standards were updated and completed in 2001, following a three-year process of review in consultation with participating organizations and staff representatives and, following acceptance by the United Nations General Assembly (resolution 56/244), the Standards were then re-published in 2002.

In the preamble of the 2001 revision, it is stated that the Standards are based on the aim of the United Nations and the specialized agencies “…to save succeeding generations from the scourge of war and to enable every man, woman and child to live in dignity and freedom.” (para.1). The preamble adds that

“…international civil servants have a special calling: to serve the ideals of peace, of respect for fundamental rights, of economic and social progress, and of international cooperation. It is therefore incumbent on international civil servants to adhere to the highest standards of conduct…” (para. 2).

Among the guiding principles then explicated are those vaules

“enshrined in the United Nations organizations [that must] …guide international civil servants in all their actions: fundamental human rights, social justice, the dignity and worth of the human person and respect for the equal rights of men and women of nations great and small.” (para. 3).

Additional guiding principles include: loyalty to the vision of organizations of which the person is a part (para. 4); integrity (”…qualities such as honesty, truthfulness, impartiality and incorruptibility”) (para. 5); impartiality (paras. 8 and 9); tolerance and understanding (”…respect all persons equally, without any distinction whatsoever”) which, “…in a multicultural setting calls for a positive affirmation going well beyond passive acceptance” (para. 6); “international loyalty” (para. 7); and an “international outlook”, implying,

“…respect for the right of others to hold different points of view and follow different cultural patterns. It requires a willingness to work without bias with persons of all nationalities, religions and cultures…It requires punctilious avoidance of any expressions that could be interpreted as biased or intolerant…International civil servants should not be wedded to the attitudes, working methods or work habits of their own country or region.” (para. 13)

Although the Standards describe expectations for the conduct of international civil servants, international organizations also have internal policies determined by member states, and staff rules determined by their executive heads. These policies and rules move from general, aspirational statements — as in the Standards — to specific procedures for administrative decisions. The Standards are designed to apply equally to all staff, irrespective of grade or seniority.

Consequently, cultures and nationalities are not formally recognized in delivery of administrative decisions or the application of conflict management systems. Instead, international organizations recognize international civil servants commonly bound by the Standards and equally subject to the policies and rules of the organizations.

The Standards form a foundation of values upon which issues raised in conflict management may be assessed and addressed. The Standards provide boundaries and parameters for acceptable conduct and, because they speak to allegedly universal values (i.e., culturally non-specific values which are also the basis for common law in many countries) they act as a referent for both the construction of CMS’s and for the subsequent conduct of each of the CMS elements. The Standards are the platform for administrative decisions occurring in the context of policies and rules of each institution. These Standards may also provide parameters within which options for conflict management may be rehearsed, including within the Office of the Ombudsman.

Challenges to Implementation

i. Contractual differences. One of the signal challenges to implementation of CMS’s based on the Standards is the diversity of conditions under which people are employed within organizations, and across organizations. Differing contracts — e.g., short-term versus fixed-term, three months to five years, with or without educational and health benefits — lead to differing levels of dependence and thus very different power dynamics within disputes.

ii. Logistics. Offices in some organizations have colleagues working in different languages, and the base language varies across regions. The question of language may limit access to “being heard” at a headquarters office.

Access to internal justice mechanisms varies according to grade and seniority, simply because such considerations can determine access to information and to technology (e.g., the use of email to reach a CMS located in another time-zone).

Time zones are another challenge, e.g., if the CMS is directly reachable by telephone only at the end of a local working day and at the very start of the CMS office’s working day.

iii. Expectations of staff versus priorities of the organization. Inconsistencies may be evident, in the application of appropriate internal justice procedures or responses to demonstrated misconduct or mismanagement, according to political or programmatic considerations, or simply according to conditions on the ground at the time of the alleged incidents.

iv. Awareness of options. Staff in different locations may have very different understandings of or information about their rights in respect of access to CMS options. This includes informal options such as recourse to the Office of the Ombudsman, particularly where contractual arrangements are diverse and language may act as a barrier. Many international organizations are addressing this issue by provision of mandatory training (and, in some instances, certification) of all staff on the Standards. Hierarchy in organizations may also act as a barrier to accessing available options, e.g., where access to communications technology is at the discretion of a problematic supervisor.

v. The range of potential internal and external actors. It is axiomatic for organizations within the broader United Nations family that equity and rights-based approaches underlie our work. Following a rights-based process for dispute resolution may require the involvement of multiple partners and players. For example, in the context of the attached Case, the range of internal potential actors may include at least the following:

· Internal security services

· Human Resources department

· Chief Executive’s Office

· Legal Department

· Internal Oversight Service (equivalent to OIG)

· Health and Medical Services

· Counselling and Psychological Services

· Protocol and External Affairs Office

· Directly and indirectly affected colleagues

· Staff Association

· Ombudsman

· The Executive Board of Member States

External potential actors may include at least the following:

· National police and/or security services

· National diplomatic missions

· Hospitals and medical/health practitioners

· Government departments of member states, including, e.g., health, foreign affairs, defence, and finance

· Social organizations and cultural groups

· Private legal representatives

· The media

Consequently, questions arising for the appropriate implementation of an ethical, just and humane response to conflicts — such as may be presented in the attached Case — include the following:

· What are the legal obligations on managing the issues? (for example, diplomatic immunity and its waiver);

· What lessons from previous experiences does the organization have to help manage such situations? (for example, ensuring timely staff care and support, what precedents are involved, what led to ‘successful’ or least damaging outcomes in the past);

· How is a balance struck between the interests of the individuals involved, and those of the organization? (for example, ensuring the safety of all who may be affected, and mitigating organizational vulnerability — if, for example, the protagonists are nationally highly regarded and highly visible emissaries from an important donor country);

· How can the situation be addressed expeditiously? (considering, for example, the impact of armed conflict, of time zones, of language, of religion, multiple administrations, multiple actors, multiple cultures, multiple agendas, of committees);

· How can responses be coordinated without compromising the confidentiality of the staff involved, the independence of the Ombudsman Office, the reputations of all elements, the relevant Standards of Conduct and the law?

· How does the organization characterise and represent the issue to itself, its constituencies, and how does it demonstrate the values and culture it espouses, in doing so?

vi. The impact of culture. All parties may be cognisant of the Standards, but behaviour is interpreted through cultural lenses and these will vary considerably. At the very least, conflict management requires an Organizational Ombudsman to be sensitive to how culture may affect the perceptions and behaviour of those involved. Nevertheless, in the contexts of international organizations in the United Nations family, staff have, in a practical, work-based sense, subordinated their culture to the Standards-based values — and resulting organizational culture — of their employer. Accordingly, in the context of international organization conflict management systems, the norms of national cultures no longer constitute a defence of untoward behaviour.

How can an Organizational Ombudsman add value to a CMS in such circumstances?

As explicated in the accompanying article by Mary Rowe, an Ombudsman Office can add significant value in dealing with conflict and learning from conflict, rather than aiming simply at finding a single resolution, or containing fallout. Ombudsman interventions can help healing by enabling organizations — at an institutional level — to reassert and model core values that problem-solving or dispute resolution alone might not address. These values may — like those embodied in the Standards — reflect ineffables: dignity, genuine respect, trust, motivation, pride, to name a few.

Indeed, by their adoption by international organizations under the United Nations family umbrella, the Standards form a foundation of values, and sets boundaries for acceptable behaviour. This platform enables Organizational Ombudsmen to refer to those values as well as to the policies and rules governing organizational conduct. Each office of the CMS suggested in the list of “Some Conflict Management Offices” in the attached Chart may use the same platform. And, as Rowe’s article highlights, Organizational Ombudsmen may help the other offices to work for ethical, just and timely conflict management.

But an additional and crucial consideration is whether the organization has the maturity genuinely to integrate an Ombudsman function genuinely within its structures. Will it be able to use an Ombudsman office in addressing situations that may result — in the short term — in possibly uncomfortable levels of necessary self-reflection? Organizational Ombudsmen have significant added value in such circumstances — and they may also create the circumstances in which the organization can effectively respond — because they:

· Work on the basis of International Ombudsman Association professional standards of practice and ethical principles which give priority to independence, neutrality and impartiality, confidentiality and informality[3],[4]

· can facilitate informal responses

· are truth-tellers to the organizations

· have principles for conduct and practice that protect those we serve (see below)

· can keep the temperature low for all parties

· can work with all the above-named, internal actors equally and alike.

Additional Observations

Conflict management systems are not linear, either in design or in practice — most usually evolve through trial-and-error and/or as circumstances dictate. It is not uncommon to hear Organizational Ombudsmen and other experienced practitioners in conflict management confess that many of their tools are constructed on an ad-hoc basis.

“Designing” a system to deal with conflict therefore has an inherent contradiction — that much of what causes conflict is novel. Dispute system design, while having much to learn from a wide diversity of traditions and bodies of research scholarship in fields of anthropology, psychology, sociology, theology, and law (to name but a few) continues to fascinate because it is constantly being challenged by new experience. It may fittingly be said that we are in the early adolescence of CMS design, in all sectors.

In addition, in implementing conflict management systems in many international organizational settings, a number of key issues are still the subject of exploration and experimentation:

  • How to establish accountability for CMS, and Ombudsman practice;
  • How to implement evaluation of efficacy and impact without compromising independence;
  • How to identify the universalities in practice, and to assert standards in implementing these;
  • How to define and assert boundaries with key partners in CMS’s;
  • How to demonstrate that our constituencies can trust us;
  • How to decide who makes the decisions about all of the above — again, without compromising independence, neutrality, confidentiality, and, for the Ombudsman, informality.

[1] What is an International Organization? For the purposes of this paper, it is an organization that operates in multiple national, cultural and geographical settings, or in a setting where people from multiple cultures work together, e.g., an organization that has an internationally-recruited workforce operating in one country. In this sense many major universities have become international organizations.


[3] International Ombudsman Association Code of Ethics, Rev. 1 / 07

[4] International Ombudsman Association Standards of Practice, Rev. 12 / 06

Junctions Along the ADR Spectrum

As ADR practitioners get out and educate the public about the various alternative dispute resolution processes, we frequently hear some of the same questions asked. People want to know the differences between this approach and that one, between what I do and what other lawyers do, between facilitative and evaluative mediation styles.  In order to best help our clients, we need to be able to successfully and clearly answer their questions.

What’s the difference between arbitration and mediation?

What is the difference between mediation and collaborative law? What does a case evaluator do differently from a mediator?

Where does the word “ombuds” come from, and how is an ombuds different from a human resources person?

How is mediation used as part of the collaborative process different from mediation that takes place in litigation?

Is arbitration all that different from litigation?

If we as ADR practitioners educate the public about the tremendous untapped resources available to them within the ADR spectrum, and engage in ongoing discussion with our potential clients about the value of ADR and the differences between approaches, we will be more successful in educating end users and referral sources about our respective services.  And we will achieve greater buy-in and use of our ADR services by the public.

Read more