Lawyers, perhaps more than other professions, are exposed to conflict in nearly every conceivable way: with opposing counsel, with clients, with judges, with co-workers, and with supervisors. These are, of course, just the work-related conflicts on top of any conflict they may experience in their personal lives. Nonetheless, “lawyers are perceived as striving in the face of stressful life events.” (Kobasa, 1982, p. 707). Lawyers take pride in their ability to handle the stress of constant conflict, often “tell[ing] stories about how they work best under conditions of great pressure.” (Kobasa, 1982, p. 707). “Past studies have shown fairly high levels of stress and depression among practicing lawyers . . . .” (Sendroiu et al, 2021, p. 381). Thus, the environment in any law firm can be treacherous in terms of an attorney’s mental health. But for as long as lawyers have been involved in conflict, law firms have largely failed to incorporate changes that could alleviate some of the stress that conflict causes, such as employing an ombudsperson. This paper will explore the pressures that lawyers face, the foundations of ombudsing, and how incorporating an ombuds office into law firms could help attorneys individually and law firms as a whole.
One problem plaguing attorneys is burnout. (Norton et al, 2016). “Burnout results from a discrepancy between expectations and outcomes, or the perceived needs of a task exceeding the perceived resources.” (Norton et al, 2016, p. 987). “Symptoms of burnout include loss of hope, avoidance of clients and colleagues, agitation and irritability, self-doubt and loss of self-confidence, cynicism, apathy, and diminished problem-solving skills.” (Norton et al, 2016, p. 988). That attorneys suffer from burnout is unsurprising. After all, “they labor under conditions that are inherently stressful, and their education and training do not provide protective factors that buffer them from the long-term effects of an adversarial (read: adverse). work environment.” (Norton et al, 2016, p. 992). “The American legal system is fundamentally adversarial.” (Norton et al, 2016, 995). In turn, “[l]aw is a competitive profession . . . .” (Sendroiu et al, 2021, p. 380). Thus, the conditions of the legal field are ideal for those involved to experience burnout.
Attorneys are expected to be fierce advocates, i.e., competitors, defending their clients’ interests against attack from equally fierce opponents. “Intense rivalry puts the autonomic nervous system into overdrive.” (Norton et al, 2016, p. 994). But the competition does not stop with the opposing side. Often, lawyers in a law firm compete with each other for better connections with more senior attorneys, as well as more and better assignments on cases. (Darden, 2009). “[T]op-tier attorneys receive better work, training, supervision, and mentors – all the ingredients necessary for an associate’s promotion to partnership.” (Darden, 2009, p. 94). On the other hand, “[a]ssociates not marked for partnership perform mundane tasks such as document review or drafting legal memoranda.” (Darden, 2009, p. 94). “In law firms, an undetected conflict could manifest through poor work product, work product beneath an associate’s skill level, and low billable hours. (Darden, 2009, p. 102). “Competition is highly rewarded, and a premium is placed on finding the ‘right answer’ instead of ‘learning how to learn.’” (Norton et al, 2016, p. 994). But “[t]he need to ‘fit in’ rank[s] alongside billable hours and client development as a requisite attribute for partnership consideration.” (Darden, 2009, p. 91).
This competitive culture can lead to burnout for individual attorneys, as well as larger issues such as diversity problems throughout firms. “The firm is a treacherous workplace for any associate, regardless of color, race, or national origin, but the alarming attrition rates for minority associates, compared with attrition rates for non-minorities, demonstrate a special problem.” (Darden, 2009, p. 91). Attorneys might leave a firm because of either of these issues, which can cause profitability problems for a firm, among other things. “For most employers, replacement costs equal nearly twice the employee’s salary and this figure does not include the lowered morale of other associates, the increase in training costs for senior level associates, and the prospective costs of recruiting competitive associates with the potential to draw a strong client base.” (Darden, 2009, p. 95). This also causes problems for the attorneys who stay with the firm, because “[a]ssociates miss the opportunity to improve their legal skills and law firms fail to fully employ those associates who remain on board.” (Darden, 2009, p. 95).
“Adversarial [or competitive] thinking is useful in trials when the lines have already been drawn. But, when it prevails within the workplace, it undermines essential social engagement and fluid, generative problem solving.” (Norton et al, 2016, p. 995). “An adversarial and competitive [culture] in the workplace results in habits, traits, and procedures that militate against optimal outcomes and employment satisfaction.” (Norton et al, 2016, p. 995). It is not surprising that law firms become such environments, given the educational process to become a lawyer. “The Socratic method was originally intended to inspire inquiry, discussion and the exchange of ideas, but this is not how it is typically used in legal education today. Instead, rigorous questioning exposes whether students have studied course material and, more important, to what degree.” (Norton et al, 2016, p. 994). Law students are not taught empathy or collaboration, which results in the production of lawyers who never learned how to empathize or collaborate professionally. (Norton et al, 2016). “Stress-based learning can become an enduring pattern that follows lawyers from college to career.” (Norton et al, 2016, p. 994). “Concepts such as restorative justice and mediation are slowly being incorporated as means of saving time, effort and money, and arriving at the best outcomes for all involved.” (Norton et al, 2016, p. 995). “But these models fly in the face of hundreds of years of a win-lose system.” (Norton et al, 2016, p. 995). Law firms will likely only become bigger, with more attorneys and more competition for promotion. (Fuchs, 1971). “With the bigness of law firms, . . . [t]here will be fewer personal interrelationships in the firm amongst lawyers themselves. Internal management problems will abound.” (Fuchs, 1971, p. 974).
Those who have already become partners, and are responsible for supervising and mentoring young associates, have been indoctrinated into an adversarial system, resulting in a pattern that requires a concerted effort to change. “Adults committed to a career track and who have wrapped their identity and sense of meaning around a specific occupational position have much more to lose . . . ” in terms of adjusting to changes that might be made for the sake of future generations of lawyers. (Sendroiu et al, 2021, p. 393). Any changes must, therefore, also be of demonstrable value to those who run law firms and have been entrenched in the existing system. One such change would be to introduce organizational ombuds into law firms, though there would doubtless be some resistance from the senior partners at any firm. The most obvious roadblock for law firms in employing an ombudsperson would be the cost. “The corporate ombuds office struggles against a perception. It is often viewed by senior management as a ‘non-revenue center,’ and it is often depreciated for that reason.” (Singer, 2010, p. 10). However, employing ombuds has become increasingly common in various industries and would greatly benefit law firms. “The real mistake is assuming that other programs like [human resources] can fill in for an Ombudsman.” (Raines & Harrison, 2020, p. 4).
“Private corporations, universities, health care institutions, and public agencies have been actively searching for ways to manage conflicts between their employees and their organizations.” (Ziegenfuss et al, 1993, p. 261). “Recognition of the corporate ombudsman (troubleshooter) is expanding nationally through practice and recent research.” (Ziegenfuss, 1993, p. 341). “Many successful organizations of the 21st century, . . . are taking proactive steps to foster organizational resilience and are recognizing that, by listening to employee concerns and providing safe venues where they can raise issues, organizations can increase their overall effectiveness, productivity, and long-term sustainability. (Barkat, 2015, p. 37).” “It is notable that this model is being accepted not only by government and nonprofit entities . . . , but also among organizations for which profit is the primary business goal (such as the Coca-Cola Company, Shell Oil Company, and Mars Inc.).” (Barkat, 2015, p. 37). “Such examples suggest that creating an organizational ombudsman program makes good business sense.” (Barkat, 2015, p. 37). If organizational ombuds can benefit nonprofit entities and profitable businesses alike, there is no reason that law firms should shy away from such an important resource. “In light of this trend, it follows that the law should also recognize the benefits and efficiency of the ombudsmen in organizations . . . .” (Spanheimer, 2012, p. 669). “[Organizational o]mbudsman exist for one simple reason: to help people and organizations.” (Howard, 2020, p. 17).
Any discussion of organizational ombudspersons necessarily requires a discussion of the four key attributes of an organizational ombudsperson: independence, neutrality, informality, and confidentiality. (Singer, 2010). “An ombuds differs from management in at least four ways: absence of formal decision-making power; independence; absence of managerial responsibility; and confidentiality.” (Gadlin & Pino, 1997, p. 19-20). “As a designated neutral, the ombudsman officially represents no one and represents everyone— including the organization—equally.” (Barkat, 2015, p. 38). If the ombudsperson is not seen as neutral, then “[t]he notion that . . . employees will turn to an intraorganizational resource to share personal or potentially controversial conflicts, harassment, or discrimination is a bit unrealistic . . . .” (Barkat, 2015, p. 38). An ombudsperson also should not manage the employees, even part-time. (Gadlin & Pino, 1997). Of course, “organizational dynamics” might make such an arrangement “inevitable.” (Gadlin & Pino, 1997, p. 20). The key is that an ombudsperson should endeavor to maintain and display neutrality in all aspects of the ombuds function. (Gadlin & Pino, 1997). “It is neutrality that differentiates ombudspersons from all others in their organizations, and it is neutrality that legitimizes their function.” (Gadlin & Pino, 1997, p. 17). This neutrality is sometimes called multipartiality. “Multipartiality refers to the recognition of the subjective quality that is a part of all human interaction. The work of an ombuds involves connecting with people, building a temporary relationship in which the visitor’s anger, fears, ambivalence, and aspirations can be expressed freely and with no consequences. Building a relationship always involves the emergence of some partiality.” (Gadlin & Pino, 1997, p. 29). “However, it is important to note that being neutral does not mean being value-free.” (Gadlin & Pino, 1997, p. 18). It is crucial that ombudspersons “work for processes and outcomes that are fair and reasonable.” (Gadlin & Pino, 1997, p. 18). Moreover, being neutral does not require that an ombuds be passive. (Howard, 2020). Part of the fear of initiating an ombudsman program might be that the ombuds would be passive, but a good ombuds is very active within their organization.
Independence is “one of the key components of a well-designed ombudsman program: that it report to the top and carry with it the full backing and support of upper management.” (Barkat, 2015, p. 39). It is ideal that an ombudsperson has no other role in the organization aside from ombudsing (though ombudsing can encompass a wide variety of tasks, which will be discussed later). (Barkat, 2015). Having an ombuds that performs multiple functions can lead to unpleasant issues. For example, “[s]erving as ombudsperson and having responsibilities in the legal or human resources area is particularly problematic because people in these areas are put on notice when a member of the organization comes to them.” (Gadlin & Pino, 1997, p. 20). Specifically, “agency law principles impute their knowledge of misconduct to the organization as a whole, placing the organization on notice of the misconduct, and, much like, ‘tag, you’re it,’ they are compelled by their job function to act on what they hear and learn.” (Singer, 2010, p. 11). If an organization has their ombudsperson report to human resources, that organization must be very clear that the ombudsperson does not also answer to human resources. (Gadlin & Pino, 1997). Moreover, “[c]ompliance and human resources officers are ‘clearly agents of their employers . . . .’” (Singer, 2010, p. 11). Even if a particular human resources department is intended to benefit the employee rather than the employer, people might still be reluctant to report something to that department based on the typical reputation of such departments. “Like people who are reluctant to report something to the police, they don’t know how an investigation will turn out, and they’re afraid the law won’t protect them.” (Howard, 2020, p. 17). If the ombudsperson is perceived as being part of those offices, the other attributes are weakened and the credibility of the ombuds is undermined. But if the ombuds remains visibly independent, they can attract visitors who want to discuss problems. “Since a visitor hasn’t started anything[ formal], there’s nothing to lose by airing out the issue with the Ombuds.” (O’Connor, 2014, p. 108).
“Without the cloak of confidentiality, the inquirer to the ombudsman is not likely to share fully or trust openly.” (Barkat, 2015, p. 38-9). “[T]he ombuds office is often the only truly confidential unit in an organization.” (Gadlin & Pino, 1997, p. 20). “This ability to voice concerns in confidence encourages those employees who fear retaliation to come forward with their issues and leads to an overall increase in the morale of the organization.” (Spanheimer, 2012, p. 667-668). The only exception to ombuds confidentiality is that of “an apparently imminent threat of serious danger to people or property . . . .” (Gadlin & Pino, 1997, p. 20). It is likely that people will go to the ombudsperson and ask “a test question” when the office is first introduced. (Singer, 2010, p. 10). But “[b]ecause of confidentiality and the open sharing that thereby results, an ombudsman can understand issues in more detail, expose motives more readily, and explore solutions that will likely be longer lasting and more effective for all.” (Barkat, 2015, p. 39). Even “courts have stated that ‘without confidentiality, the ombuds process would not work.’” (Spanheimer, 2012, p. 670). “[F]ailure to keep communications with an ombudsman confidential would devastate the ombudsman process beyond repair in the eyes of third parties.” (Spanheimer, 2012, p. 670). Ombuds confidentiality may be a tricky subject for attorneys when an ombuds is first introduced into a law firm. Although attorneys are quite familiar with various privileges, those privileges are very different from the confidentiality practiced by ombuds. Privileges can be waived, but “visitors cannot waive confidentiality.” (Noorbakhsh, 2012, p. 28).
The final attribute, informality, is important in that “it allows the inquirer to remain actively in control of both the process and the decision making about outcomes.” (Barkat, 2015, p. 40). “The ombudsman partners collaboratively with those seeking assistance in a way that supports and empowers them to evaluate options, and to then select a course of action best suited to their situation and needs.” (Barkat, 2015, p. 40). “By resolving issues informally, parties have greater control and flexibility in framing the issues and crafting resolutions, while also learning about and working with organizational needs and requirements.” (Barkat, 2015, p. 40). There is some dispute as to the interpretation of this standard of practice. On the one hand, “informality is so inextricably woven with the other [standards of practice] that [ombuds] have to practice informally to be confidential, neutral, and independent.” (Noorbakhsh, 2012, p. 28). On the other hand, “use of the term informal diminishes [ombuds] in [their] own eyes, not to mention eyes of those who come to [ombuds].” (Gadlin, 2012, p. 33). It can be helpful to think about informality in terms of flexibility, where ombuds “do not follow fixed procedures but rather can adapt [their] interventions to suit the issues, people, context, interests or goals of those who come to [the ombudsperson].” (Gadlin, 2012, p. 32). The ombuds is not responsible for conducting any investigation, participating in any internal hearings, or producing records to other departments. (Noorbakhsh, 2012). “For an organizational ombuds, responding to some requests that would be completely appropriate for other employees sometimes requires ‘just saying no.’” (Sebok, 2012, p. 37). Thus, the fear of a misunderstanding of “informality” can be addressed by discussing the office in terms of its flexibility to help employees of the law firm deal with any issues they may have.
Organizational ombuds can perform several different functions within their role. (Barkat, 2015). “The ombuds role is far broader than serving as ‘simply mediators.’” (Wagner, 2000, p. 103). “Ombudsman programs are [also] in a unique position of power within an organization.” (Barkat, 2015, p. 42). One of the most well-known functions performed by ombuds is problem identification and assistance. (Barkat, 2015). In performing this function, an ombudsperson “is available to employees . . . to provide information, to hear concerns or complaints, to direct concerns to appropriate internal resources, to help mediate interpersonal conflicts (directly or through shuttle diplomacy), to assist in untangling tough problems, to propose or brainstorm possible solutions, to coach visitors on how to strategically navigate turbulent conflicts, or to simply communicate information upward in the organization.” (Barkat, 2015, p. 40). “Typically, when an employee calls the office, the ombuds first describes how the program works, with an emphasis on confidentiality.” (Howard, 2020, p. 18). “Then the ombuds and the employee discuss responses to the problem.” (Howard, 2020, p. 18). “These functions are often the first priority for many ombudsman programs and are how the ombudsman office gathers its data, becomes aware of issues, and handles cases.” (Barkat, 2015, p. 40). The key attributes of an ombuds discussed above would make an associate more likely to visit an ombudsperson over a different resource that may already exist at their firm.
It seems obvious that benefits would be derived in a law firm because associates would have someone to talk to about any stress or conflicts they may experience in the workplace. “Indeed, humans require interaction, positive feedback, and empathy.” (Norton et al, 2016, p. 995). “Burnout and compassion fatigue are insidious, debilitating conditions that undermine the professional efficacy of practitioners and the agencies in which they work. Growing research shows that they are found in the legal profession to a greater degree than in many other inherently stressful professions and result from the institutional structure of law offices, the adversarial nature of the practice of law, and lack of prevention and early intervention for the effects of burn out and compassion fatigue.” (Norton et al, 2016, p 1002). The benefit of an ombudsperson from the perspective of the individual associates who have someone to talk to would be felt immediately by any law firm. Even a law firm that has committees devoted to various associate-oriented topics would benefit from the presence of an ombudsperson. Often, committees become “a gripe situation, not necessarily a constructive, creative thinking session.” (Darden, 2009, p. 97). They can be even less productive if senior partners or managers are included in meetings. “According to public opinion, there is a serious lack of trust in executives to listen to and address issues.” (Raines & Harrison, 2020, p. 3). Because of this, if senior partners attend committee meetings or hope that associates will approach them with problems, they are likely to be disappointed. Associates may not address their conflicts with any partners for fear of seeming weak or inviting retaliation. This is likely true even in law firms with a solid mentorship program that pairs younger associates with partners and other more experienced attorneys who provide guidance, simply because of the culture that has developed in large law firms.
“If the firm provides no other recourse or path through which to discuss, identify, and systematically address . . . issues, save for affinity groups and associate committees, then it is not possible to bring these issues to the attention of the firm’s leadership.” (Darden, 2009, p. 115). An ombudsperson can use their individual meetings with visitors to gather data about trends, common conflicts, or other issues that need to be addressed by an organization that is self-aware. (Barkat, 2015). “[A]n Ombudsman should be, and should aspire to be, one of the most influential people in the organization.” (Gadlin, 2012, p. 36). “The organizational ombudsman has an obligation to look within each complaint for the possibility of a recurrence or pattern and to take steps to change the structure in order to prevent a similar problem in the future.” (Wagner, 2000, p. 100). “Managers will value the ombuds function more if it provides them with useful information about early warnings, trends and patterns to help them prioritize and direct their own efforts.” (Wagner, 2000, p. 103). “When leaders understand the value of the office, they are more inclined to encourage workers to avail themselves of it.” (O’Connor, 2014, p. 108). This, in turn, would provide more opportunities for the ombudsperson to work with associates, and to gather data on what issues are affecting the associates and whether organizational strategies have been effective in dealing with common conflicts or problems. Ombuds typically bring these issues to an organization’s attention by preparing a regular report for the highest levels of management, including data such as how many visitors come to the office, the categories of problems they bring, and the service provided by the ombudsperson. (Raines & Harrison, 2020). Using “Risk Categories” is a helpful way to provide this information, as it maintains visitor confidentiality, but clearly communicates worthwhile data to the organization. (Biala, 2012). In this function, the ombudsperson’s monetary benefit to any law firm becomes clear. As noted above, associate attrition is a huge loss for any firm. (Darden, 2009). Thus, law firms must focus on associate retention to reduce that loss and increase their bottom line. Because associate attrition can be extremely expensive for any firm, it makes sense that retaining attorneys would save the firm money. It would probably not take long for an ombuds to save more in attorney attrition costs than their own salary or contract rate.
“One often unrecognized function of the ombuds is that of educator or ‘coach,’ in working with individuals or groups.” (Wagner, 2000, p. 103-104). This can be referred to as “promotion of conflict competence.” (Barkat, 2015, p 41). “Coaching visitors is foundational to the Ombudsman role.” (“Raines & Harrison, 2020, p. 10). “Listening, skill-building, conveying compassion, and referral to resources often allow individuals to build the internal capacity and confidence to better manage their conflicts both inside and outside of the organization.” (Raines & Harrison, 2020, p. 10). “Many strong organizational ombudsman programs use the expertise available to conduct or coordinate efforts to educate, train, or coach employees and management on how to work together more collaboratively with their differences and, thus, promote conflict competence.” (Barkat, 2015, p. 41). Nothing about the practice of law itself prepares an attorney for the additional roles they will play if they are promoted to partner, i.e., mentor and supervisor. But working with an ombuds could help attorneys learn the skills they will need in those roles. “The ombuds might also train or coach a group in conflict resolution techniques or negotiation skills: some ombuds regularly meet with new middle managers in this role; upper-level managers also benefit from skill-building workshops.” (Wagner, 2000, p. 105). “The better equipped a person is to deal with difficult situations, the easier it will be to prevent, mitigate, and address conflict, thus improving the work environment.” (Barkat, 2015, p. 41). Even without formal coaching sessions, “[o]ver time, the accumulated one-on-one contacts with dozens, then hundreds, and eventually thousands of individuals in the organization will lead to a higher general conflict resolution skill level and wider change within the organizational culture.” (Wagner, 2000, p. 104).
Employing an ombudsperson in this capacity will improve and have a positive impact on a law firm’s culture. “Why is organizational culture so important? Organizational culture impacts mission achievement, profitability, innovation, employee retention and motivation, and even brand image.” (Raines & Harrison, 2020, p. 3). This function of an ombuds has obvious benefits to a law firm, in terms of promoting associate retention; if associates feel as though they are being managed more effectively by managers who receive coaching in various management and conflict resolution techniques, then they are more likely to experience satisfaction in their position with the law firm and to remain with the law firm. It will also help new attorneys assimilate into the firm and help attorneys assimilate into new roles as they are promoted. Overall, as demonstrated by this paper, an organizational ombudsperson would be an extremely valuable tool for any law firm looking to improve employee experience and generate new approaches to financial and cultural health. Dispute Intervention and Preventions Services, LLC offers contract ombuds services for those law firms looking to integrate an ombudsperson into their organizations.
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