The Challenge of Balancing Confidentiality and Transparency in an Ombudsman Mediation Service

Abstract

Mediation is becoming increasingly popular as a process of dispute resolution, with confidentiality as one of its core tenets. Where mediation is provided as part of a statutory-funded service, the confidentiality provision is complicated by the reporting requirements of the State, as funder and regulator.  The issue considered in this research is how that challenge can be addressed by the Irish Financial Services and Pensions Ombudsman (FSPO).

This paper draws on international literature and practice. A range of comparator organisations were examined to establish how they address this challenge and the implications for the FSPO. The contrasting demands of confidentiality and transparency create a dialectic tension that is common when private and public interests are present and, at first look, it may seem to the outside observer that the boundaries of confidentiality and transparency are fluid and inconsistent.

However, while the findings indicate some variance in practice, they suggest a common rationality and coherent approach across ombudsman services in their use of mediative-style processes based on shared principles, reasoned expectations and valid criteria. To arrive at these findings, two basic questions were addressed: (1) What does the Ombudsman need to be transparent about and why? (2) What information pertaining to the service needs to remain confidential and why?

This research contends that pragmatic solutions can be found to the tension inherent between the need for confidentiality and transparency in a state-funded mediation service and that these findings have relevance to other dispute resolution services.