Although Organizational Ombuds have become an important embedded ADR tool for many organizations, legal protections for the profession remain uncertain. Whether or not an Ombuds can successfully assert a privilege has not been extensively developed in case law and there are no statutes on point. This is one reason why general and outside counsel are reluctant to support an Ombuds for their organization, despite the benefits.
An article in the latest issue of the Marquette Law Review addresses the issue: "Justification for Creating an Ombudsman Privilege in Today's Society." The student author, Ryan Spanheimer recapts the relevant history on the issue and explains why the creation of such a privilege is a logical next step in the policies encouraging settlement of conflicts outside of court.
Here's the summary of the article:
Due to ever-increasing court congestion and contemporary policy favoring the resolution of disputes outside the courtroom, now more than ever a privilege for communications with an ombudsman is needed. Although statistics demonstrate that an ombudsman can quickly and effectively resolve disputes, courts have been inconsistent in recognizing such a privilege. This failure to consistently recognize a privilege for communications with an ombudsman places practicing ombudsmen in a catch-22. Ombudsmen are left to decide between disregarding standards of practice they have sworn to follow, most notably that ombudsmen keep communications in confidence, on the one hand, or of violating a court order requiring disclosure of the communications made to the ombudsman, on the other. Recognizing an ombudsman privilege will eliminate this dilemma without unduly impeding access to evidence, as an ombudsman privilege is merely a different embodiment of privileges and rules of evidence already in effect.
Spanheimer is a JD candidate at Marquette University. He thanks only the current and former members of the Marquette Law Review and does not seem to have received assistance from any identifiable Ombuds. (Marquette Law Review.)