March 01, 2018 GPSolo

DISPUTE RESOLUTION: Reflections of a Federal Agency Ombuds

By Wendy Kamenshine

As Ombudsman for the Consumer Financial Protection Bureau (CFPB), I serve as an advocate for a fair process, like other ombuds. However, in this context I also am a public servant, one with a special opportunity to assist both a federal agency and the people and entities that interact with it.

The CFPB opened in July 2011 and is an independent agency of the U.S. government created in response to the 2007–2008 financial crisis. The agency shares that it “was created to provide a single point of accountability for enforcing federal consumer financial laws and protecting consumers in the financial marketplace” (tinyurl.com/ybvpdure).

The essence of my role is to advocate for fairness in the agency’s engagement with the public and the public’s engagement with the agency. What does this mean in practice? I think of this in the form of a few questions. Is the agency fairly applying a process it established? If there is no set process for what the agency is doing, should we recommend creating one? Lastly, does the existing process need to be changed in some way to provide the public with a fair application of it?

Ombuds principles that guide our work. In all our public materials, in every presentation, in every opening e-mail message, and in every first meeting, we describe the ombuds principles that guide our work: independence, impartiality, and confidentiality. Together these basic principles enable us as ombuds to be advocates for a fair process and informally assist in resolving process issues with the agency.

Independence means that we do not report through any agency office or division. We report to the Deputy Director and then directly to the CFPB Director. We serve as an early warning mechanism, make recommendations for change, and provide feedback. By reporting to the people at the top, we offer information to the individuals who can best effect any needed change organizationally.

Impartiality means we do not take sides, and we advocate for a fair process. In the CFPB context, we do not take the side of anyone who contacts us, and we do not take the side of the CFPB. With independence and impartiality in mind, we do not speak or write on behalf of the agency.

As ombuds, we offer confidentiality so that someone can share an issue without her identity becoming known, which is particularly important for anyone who fears retaliation or retribution in raising it directly with the organization. There are a few exceptions to confidentiality, such as a threat of imminent risk of serious harm, an allegation of government fraud, waste, or abuse, or if required by law. These exceptions are rare, and so in most cases we can protect someone’s identity.

This is ADR? In presentations I sometimes share that Alternative Dispute Resolution (ADR) is a heading with many branches underneath, such as mediation, facilitation, arbitration . . . and ombuds. As ombuds, we serve as third-party neutrals to informally assist in resolving process issues and are advocates for a fair process in everything we do.

I also find it helpful to describe how ombuds work is different from mediation.

Many forms of mediation take place with defined parties over a defined time frame and focus on a certain set of issues or topics. Instead, as ombuds we consider ourselves to have stakeholders. At the CFPB Ombudsman’s Office, anyone outside the CFPB and the CFPB itself are our stakeholders. We understand the issues involved and how to best try to resolve them at the agency.

In addition, as ombuds, we think of ourselves as having a toolbox of resources to assist in resolving whatever it is that is happening. That toolbox can include mediation but is much broader to include facilitation, shuttle diplomacy, providing feedback, making recommendations, and generating options, to name just a few.

Engagement with our stakeholders. Over time, stakeholders get to know the ombuds office, and we get to know our stakeholders. As a result, we hope to achieve that comfort level so that people outside the agency will seek our assistance, when needed, to raise issues. At the same time, we know the agency well and research the issue and try to address it with the appropriate divisions, offices, and people inside the agency.

Outside the agency, this engagement is through our outreach with consumer, industry, and other groups. We connect with groups that already engage with the CFPB and introduce ourselves and our resource through in-person meetings, teleconferences, and virtual meetings. We also speak at conferences, meet with groups’ members in teleconferences, and present to boards of directors.

Inside the agency, this engagement is with our “inreach,” a word I first heard years ago from an ombuds colleague. Inreach is sharing about our role with new and current CFPB employees in various ways so that if we contact someone to discuss an issue, we hope it is not the first time they learn about our function. It also involves meeting regularly all across the CFPB with various divisions and offices at a regular cadence, whether quarterly, bimonthly, or monthly. In these meetings we serve as an early warning mechanism, make recommendations, provide feedback, and learn the latest about what’s going on inside the CFPB that we might not learn about otherwise.

Individual and systemic process issues. There is no typical day for an external federal ombuds. Day to day, we receive individual inquiries from the public, including individual consumers or their representatives, individual companies, consumer groups, industry groups, other government agencies, and anyone else outside the CFPB. The inquiries are about all kinds of process issues pertaining to that person or entity’s particular situation. Each year we also study a few systemic issues, topics I select in consultation with my team, because we think we may be able to add value from our unique vantage point as an independent, impartial, and confidential resource.

Getting people to the right resource. As a government office that hears directly from the public, we regularly try to assist people in getting to the appropriate resource. In FY2015, we referred the people who reached us to 1,114 resources. We may refer them to another part of the CFPB that can assist.

For example, a consumer may not know that she can file a consumer complaint with the CFPB regarding a financial product or service, or a company may be looking for answers about an agency regulation but not know where to go for those answers.

Sometimes the resource needed is outside of the CFPB. It could be that another ombuds office can assist or perhaps another federal agency. We also might refer someone to a state agency or a legal aid provider.

If someone is caught between federal agencies, we may contact ombuds offices at other agencies to ensure the person is at the place that can best assist. There are ombuds offices all across the federal government, including those that work on internal, workforce type issues as well as offices like mine that are externally facing to assist the public with their agency interactions. As a unique sector within the broader ombuds profession, federal ombuds offices connect regularly through monthly meetings, an annual conference, and otherwise to share best practices and learn from each other. From those connections, we can guide someone to the help she needs.

Conclusion. As my office approaches its fifth anniversary, my team and I continue to think of new, creative ways to assist both the public and the CFPB, and, to quote our office motto, “to advocate for a fair process in consumer financial protection.”

ABA Section of Dispute Resolution

This article is an abridged and edited version of one that originally appeared on page 14 of Dispute Resolution, Fall 2016 (23:1).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/dispute

PERIODICALS: Dispute Resolution magazine, published four times per year; Just Resolutions eNews, electronic newsletter published ten times per year.

CLE AND OTHER PROGRAMS: Annual spring conference, the world’s largest ADR conference; advanced mediation, arbitration, and negotiation training institutes; monthly teleconferences and webinars.

BOOKS AND OTHER RECENT PUBLICATIONS: The Organizational Ombudsman: Origins, Roles and Operations—A Legal GuideStructured Negotiation: A Winning Alternative to Lawsuits; Beyond Smart: Lawyering with Emotional IntelligenceAppellate Mediation: A Guidebook for Attorneys and Mediators.

Wendy Kamenshine

Wendy Kamenshine is the Consumer Financial Protection Bureau's first Ombudsman. Prior to joining the federal government, she practiced international trade law.