I would suggest that it is very important for a lawyer to realize that the Ombudsman process is not adversarial. The Ombudsman acts as an advocate for fairness, and not for either of the parties. The Ombudsman is interested in redressing unfairness, and in helping the organizational systems to be fair. The Ombudsman doesn't assess blame, nor attribute damages or compensation. So, I believe that clarity of any Ombudsman's role for a lawyer is critical.
* * * It is also important for lawyers to understand that the Ombudsman's work is done in private and in confidence, my Office does not act as a fact finding body for the purpose of providing evidence for litigation. I think that lawyers, like other third parties, can assist in the Ombudsman process by ensuring that there is a reasonable expectation of what an Ombudsman can do to resolve the issue ... and by ever bearing in mind that fairness is the key mandate for the Ombudsman.
(ICANN Ombudsman Blog; ABA Conflict Management Newsletter.)
Too often, Ombuds are inclined to disengage when confronted by an attorney. Yet visitors are increasingly likely (especially in the US) to retain counsel early in the dispute process. Thus, by withdrawing from interacting with attorneys, Ombuds voluntarily isolate themselves from a growing portion of the population. I encourage Ombuds to engage with attorneys who are working with visitors toward an informal resolution. (At the same time, I reassure Ombuds that competent and ethical attorneys will seek to exhaust informal avenues before formal processes.) Ombuds have an obligation to to explain our role to attorneys and not foreclose opportunities for a constructive dialog for informal conflict resolution. Fowlie's comments are on point in this regard.
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