Introduction
This is a book about how ordinary people experience the informal justice system. Based on an original dataset of recent users of ombudsmen,1 an institution of the informal justice system, the rapidly developing literature on procedural justice and legal consciousness is taken to a new place. In combining these theories, I offer a comparative understanding of informal justice systems that are now spreading rapidly across Europe.2 This book explores consciousness around āalternativesā to formal legality, as legality constructs ideas about justice. The argument set forth is that peopleās expectations of informal justice are rooted in practices of (national) legal socialization. Posing the question of how everyday assumptions about law and perceptions of fairness guide our expectations of informal justice, I argue 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.
This volume develops new insights into the growing field of alternative dispute resolution (ADR) in general and the role of ombudsmen in particular. ADR takes many forms and has a multitude of meanings in different contexts. Specifically, I will be examining an institution that provides ADR in the informal justice systemāthe ombudsman. The terms āombudsmanā and āADRā are often used in the same breath, but they are not interchangeable. Ombudsmen are a form of ADR, but not all ADR providers call themselves ombudsmen (more on this in Chapter 2). As my unit of analysis, I examine usersā perspectives towards different types of ombudsmen. Studying ombudsmen offers a window into larger questions to do with ADR and informal justice. Taking examples from the administrative justice and the civil justice systems, appropriate dispute resolution is explored through the experiences of users of these systems.3
The book offers fresh insights into sectoral, national and cultural approaches to dispute resolution. Ombudsmen in my project cover EU-wide regulated sectors: energy, telecoms and financial services, which allows for cross-country comparisons. In addition to the private ombudsman models, I included public ombudsmen in my study for two reasons: firstly, to add to the richness of comparative empirical data; and, secondly, for a more comprehensive representation of ombudsman models. The data gathered allows comparisons between public and private sector ADR bodies in the UK and provides an insight into patterns of national-specific disputing behaviours. The original project looked at 14 ADR providers in the UK, Germany and France. It transpired during the data-analysis that the French dataset did not provide enough comparable data so I decided to exclude France from the empirical analysis. This leaves the principal focus of the book on the UK and Germany.
This book is based upon a rich and original dataset of 2777 recent users of ombudsmen in Germany and the UK and explores how they experienced their interaction with institutions of the informal ADR system. This has not been done before. Making use of both quantitative and qualitative data, the book focuses on the divide between usersā expectations on the one hand, and what an ADR (informal justice) system can reasonably deliver on the other. This is achieved by comparing usersā expressed expectations from my datasets with EU and national regulations that determine the authority of the ADR bodies.
Consumer ADR in Europe has been revolutionised as a result of two broad forces: first, the on-going crisis in funding of civil litigation through the courts, associated cuts in legal aid and increases in court and legal fees. Second, the adoption by the EU of consumer ADR as a principal mechanism for the resolution of consumerātrader disputes through the creation of a pan-EU network of consumer ADR bodies, and a cross-border online dispute resolution (ODR) platform. These latter developments are legislated for under Directive 2013/11/EU on consumer ADR and Regulation (EU) No 524/2013 on ODR. Despite the legislation being implemented quite recently, promising access to justice in the European single market, little is known about what users of this ADR system expect from it.
At the time of writing, a relevant topical issue from the perspective of this book is Brexit. On 23 June 2016 UK citizens voted in a referendum to decide whether to remain in or to leave the EU. Leave won by 52ā48%. The referendum turnout was 71.8%, with more than 30 million people voting (EidenmĆ¼ller 2016).4 What effect will this development have on ombudsmen and ADR in the UK? One can only speculate at this point. However, due to the fact that the ADR legislation has been adopted into national law and ADR bodies and the ODR platform are already established, it is unlikely that ADR will disappear. ADR has developed in the UK quite independently of the EU. Therefore, ADR will continue to grow within the dispute resolution system and assert its place. However, there will have to be UK-internal proposals on how to further develop ADR and to consider the relationships and agreements with other ADR providers regarding cross-border complaints. This will surely not be a priority in the complex negotiations ahead. Disentangling 43 years of agreements and treaties with the EU will take a significant amount of time. In the meantime, I trust that providing empirical evidence about peopleās expectations of and attitudes towards informal justice systems in different legal cultures might assist the debate.
Trusting the Middle-Man: Impact and Legitimacy of Ombudsmen in Europe
In this book I have set out to answer two main questions. What explains usersā perceptions of fairness and trust vis-Ć -vis ombudsmen institutions? And how do cultural frameworks influence citizensā use of ombudsmen? In order to answer these questions, I have integrated two bodies of literature that rarely address one another: procedural justice and legal consciousness. These are brought together through the methodology: a combination of the large quantitative dataset (of responses to closed questions) on the one hand, and the richness of responses to the open-ended questions in the survey and interviews provided country specific narratives on the other.
The comparative strengths of qualitative and quantitative research methods matched the theoretical complexity of the study and helped establish empirical validity of the data. A structured case study comparison was conducted in two EU member state countries that were selected to represent diversity of cultural settings with respect to the rule of law: the UK and Germany. The data was collected through satisfaction surveys, focus groups, and semi-structured interviews. The survey was aimed at the target group of ombudsman users who have recently been through the complaints process. The development of the survey instrument was informed by focus groups, organized to bring together key stakeholders (ombudsmen, citizensā advice groups, and consumer associations). The survey was piloted before it went live. This approach was applied in both investigated countries to enable sensitivity towards the appropriate cultural and national-specific settings. The local ombudsmen sent out the survey to a random sample of their customers who had just been through their complaints procedure. As a follow-up to the survey, semi-structured interviews with users as well as ombudsmen in each location provided a richer understanding of peopleās perceptions, including the opportunity to explore further the cultural context.
The first question (about fairness perceptions) was based on quantitatively exploring procedural justice in a new context by measuring peopleās perceptions of an ombudsman procedure. This study is not looking at how public authorities or complained about bodies perceive the ombudsman. The focus is on the user of the system. The second question (about cultural frameworks), guided by qualitative considerations, uncovers differences in cultural approaches to ADR. The data suggest that the way people view ombudsmen is informed by their assumptions about legality, and I argue this is shaped by their legal socialization (Trinkner and Tyler 2016). The construction of legal attitudes reflects peopleās evaluations and expectations of a system and its institutions. Legal consciousness is explored in this context as an approach that helps to uncover cultural specificities (Merry 1990; Ewick and Silbey 1998; Halliday and Morgan 2013; Morgan and Kutch 2016).
Peopleās expectations and acceptance of informal justice are based on experiencing a fair procedure (Tyler 2006). However, this is only one aspect of the complex set of expectations that condition peopleās relationship with informal justice. This experience is also informed by legal socialization through national and cultural contexts developed when growing up. Legal socialization influences how we expect legal authorities to make decisions, how those authorities should treat us, and lay beliefs about the boundaries of legal authority. In other words, although ADR is a system that provides informal dispute resolution, people who use this system do not share an informal socialization of the system and therefore exhibit distinct patterns of expectations of the system. These patterns are based on peopleās everyday encounters with and expectations of the formal legal system. This, I contend, is expressed and can be empirically explored through peopleās legal consciousness. The quality of the encounters with the informal system will have an impact on legitimacy of an ADR procedure and affect usersā trust. Trust can be empirically understood as expectations about current and future behaviourāwhere positive experiences encourage trusting behaviour (Jackson and Gau 2016). In order to understand and comment on how trust can be built and maintained in an informal justice system it is necessary to unpack what users of that system expect and from where these expectations arise. In this book I shed light on how people who use ADR make sense of it and what this means for national and European informal justice.
Plan of the Book
Part 1: Setting the Scene
Chapter 2: Europeās Justice Systems
This chapter provides an overview of Europeās justice systems and introduces the consumer ADR directive and the regulation on ODRāthese form the basis of the fundamental, EU-wide change to the informal dispute resolution landscape. It includes an outline of what the implementation of these new rules into national (UK and Germany) ADR infrastructure means for the justice systems. The implementation into national frameworks signifies different things in different jurisdictions and needs to be disentangled. I argue that, for the legitimacy of the new legislative framework for ADR/ODR to be accepted, it needs to be understood in a national context and through its relationship with the formal legal system.
Chapter 3: Models of Ombudsmen
In this chapter, I discuss the implementation of the consumer ADR directive in national legal spaces. This legislation is very recent and, most systems and their users still need to become aware of, and accustomed to, this developing regime. I argue that for ombudsmen to be accepted and trusted as part of a system of justice, they have to be understood in their national context. In so doing, I discuss the country case studies and highlight similarities and differences in the development of ADR bodies. I discuss national and cultural distinctions in the legal systems, as well as those between public and private ombudsmen. Every member state has its own traditions and legal systems that have formed their populationsā approaches to disputes, attitudes to institutions and expectations of those institutions. I argue that the relationships we form with authorities influence the relationships discussed in this chapter: specifically, those between the citizen and the state and those between consumers and a business. These relationships are established and develop through our legal culture.
Chapter 4: Theorizing Procedural Justice and Legal Consciousness
In this Chapter, I introduce the theoretical and methodological approach. I start by discussing how the theory of procedural justice is brought to a new setting and how it requires an extended methodology to more fully understand what people expect from an ADR body. Here, legal socialization and legal consciousness are proposed as concepts to enhance the procedural justice findings in the data. The argument I advance in this chapter is that, to get a better understanding of peopleās expectations, attitudes, and perceptions of fairness towards/within a system of informal justice, a mixed-methods approach facilitates an examination of unexplored areas. This approach is able to provide a richer account of what is happening in everyday encounters with institutions of the informal justice system. In sum, this chapter lays out the theoretical and methodological considerations for the empirical evidence to follow in part two.
Part 2: Empirical Discoveries
Chapter 5: Expectations and Perceptions of Ombudsmen in a Cross-National Comparison
In this Chapter, I take the rich quantitative dataset and discuss peopleās attitudes towards an ombudsman. I show how these matter in relation to building trust and legitimacy in the ombudsman institution. Theories of procedural justice create the framework for the examination. Applied to a new context, the theory of procedural justice is critically analysed. I find that, despite the strong evidence on the importance of procedural justice to the legitimacy of authorities and resulting rule-abiding behaviour in this context, outcome also matters. I conclude by indicating the limits of the quantitative analytical framework and expand the inquiry through a qualitative layer that helps better understand respondentsā self-reported perceptions. This leads into the argument of the next chapter: that legal socialization and legal consciousness explain what motivates people to think and act the way they do when interacting with a justice system.
Chapter 6: Everyday Assumptions about Ombudsmen
In this chapter, I introduce a further dimension to the analysis through the qualitative data. I suggest that we need to consider legal socialization and legal consciousness to get a better understanding of why we act the way we do when engaging with an ombudsman procedure. In a cross-cultural comparison, the ombudsman, as a model of justice, is explored. I argue in this chapter that peopleās relationship with the law plays a crucial part in how they negotiate their way through, and engage with, the informal system. To explore this proposition, the notion of legal socialization provides fertile ground when combined with the qualitative data. Here, narratives of legal consciousness are discussed. I explore how peopleās legal socialization and legal consciousness frames their understanding of an ombudsman procedure. I conclude that the formal legal system is likely to serve as a benchmark to shape attitudes towards the informal system.
Part 3: The Future of the Informal Justice System
Chapter 7: A European Informal Justice System?
In th...