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When Formal Changes Are Not Enough: The Advantages of an Ombuds Program

ACC Docket

October 2006

In this article on ombuds programs, Charles Howard discusses the importance of an ombuds’ lack of permanent records. He is quoted in saying that "in some ways, the issue is analogous to one that sometimes arises in mediation, another process that is valuable precisely because it is a confidential process that is generally less formal than the other alternatives (e.g., litigation and arbitration). Most U.S. jurisdictions recognize a mediator’s privilege not to reveal communications made in the course of the mediation, in order to uphold the public policy of effective dispute resolution. He continues by saying that "in my experience, courts have been willing to recognize a privilege under Federal Rule of Evidence 501 for communications between an ombuds and an employee that is not waivable by the employee alone. Of course, not all disputes are litigated in federal court and not all states recognize a 501-type privilege." To this end, Charles argues that the employee’s use of the ombuds office creates an implied contract to respect its principles underlying the ombuds office, including the stated policy of confidentiality.

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