There has been a great deal of discussion in the  news media and social media platforms following the Russell McVeagh sexual harassment complaints, and the subsequent investigation by Dame Margaret Bazeley. Her report concentrated on governance issues within law firms, and made numbers of suggestions about the appropriate responses.

What is missing in this discussion are two elements. The first is that they need an independent place where complaints can be made. While the New Zealand Law Society has a complaint service, there are better models for dealing with complaints within law firms and across the profession. The second missing element is that of a remedy. Virtually all of the discussion concentrates on punitive measures to deal with the bad actors. My suggestion is that there has been little consideration of the use of restorative justice to deal with the offenders and the victims.

In New Zealand the use of the organisational ombudsman concept has been very limited. In part, this is because of the statutory restriction on the use of the term "ombudsman" but also some reluctance on the part of organisations to use this model at all. In an article https://www.law.com/americanla... Gwen Mellor, a management consultant to law firms, writing in The American Lawyer discusses the use of the ombuds model. For those not familiar with this abbreviation, it is now generally recognised as the most appropriate non-gendered form of "ombudsman". I have earlier written on the need to move to the nongendered form, and it carries the additional advantage of avoiding the statutory protection given to the word ombudsman.

Although the concept of an ombudsman originated as a neutral and independent intervener between a state and the citizens, over the last 40 years, and especially in North America, the concept of the organisational ombuds has grown exponentially. The International Ombudsman Association http://www.ombudsassociation.o... as the primary professional body for ombuds, has developed the concept of organisational ombuds by offering training, certification, a peer-reviewed journal studying the work of ombuds and advocated for the use of the concept in many organisations. Although it uses the term International, and does have members from outside North America (including me), it has struggled to become a truly international organisation. But leaving that problem to one side, the IOA has developed a sophisticated concept with best practice and codes of ethics. A large percentage of members work within tertiary institutions such as universities. Some work with everyone, others are there for students or staff. A growing number of large companies and international organisations are also now using an ombuds office, with organisations such as Coca-Cola, Mars Corporation and the United Nations all having experienced and senior ombuds officers.

The important part of this however is the way in which the ombuds office can be a mechanism for dealing with complaints. I have taken the following definitions and guides from the IOA website. 

The organizational ombuds is defined as: “a designated neutral who is appointed or employed by an organization to facilitate the informal resolution of concerns of employees, managers, students and, sometimes, external clients of the organization."
The primary duties of an organizational ombudsman are (1) to work with individuals and groups in an organization to explore and assist them in determining options to help resolve conflicts, problematic issues or concerns, and (2) to bring systemic concerns to the attention of the organization for resolution.

An organizational ombudsman operates in a manner to preserve the confidentiality of those seeking services, maintains a neutral/impartial position with respect to the concerns raised, works at an informal level of the organizational system, and is independent of formal organizational structures. Successfully fulfilling that primary function in a manner consistent with the IOA Standards of Practice requires a number of activities on the part of the ombudsman while precluding others.

Several themes emerge from looking at the concept, being confidential, neutral and informal. This is the missing element in the way which these issues are investigated in New Zealand. While it is possible to make complaints, in smaller law firms or legal departments, it would be difficult to keep complaints confidential and of course the complaints are made generally to a partner for an HR person, who will not be neutral. The standard practice of receiving such complaints is to set up a formal investigation, which can often turn into a complex juggernaut and end up harming all of those involved. So the other element which I suggest is essential, is the use of restorative practice in investigating such complaints.

Of course, lawyers mostly practice in sole practitioner firms or small firms and don't have the facility to have their own ombuds office. So a better concept would be to set up an ombuds office to deal with such complaints and ask law firms to sign up so that their members and staff would have access to the ombuds office when needed. This could extend to corporate and government lawyers, whose employers could also sign up to the use of the service. The incentive would be that it demonstrates a commitment to dealing with such complaints, but also taking the burden of the investigation and resolution of complaints away from the law firms. By having an independent neutral and confidential place for complaint handling, it would remove the perception that the New Zealand Law Society Complaint Service has of being part of the establishment. An independent NGO organisation with lawyer and lay supervisors could run the organisation, and with professional ombuds employed to handle the complaints.

I could go into considerably more detail, but at this stage want to float the idea to see if there is any acceptance of this model to deal with a difficult and problematic issue. Please feel free to contact me with any feedback.