#entangled construction

Previously, I spoke about workers assemblies where regulation would be born from the cooperation of workers and community members. In a system that creates rules, standards, or agreements, there must be methods of monitoring and enforcement. The role of monitoring can be effectively taken up by a combination of circuit courts and ombudsmen.

The typical arrangement for ombudsmen takes the form of either internal or external, and either for business or government bodies. Ombudsmen are granted special powers to investigate the inter-workings of organizations. Usually they are granted power to subpoena documents, and interview witnesses under oath. They can begin an investigation either upon complaint or by their own initiative. They gather information by interviewing the complainant, personnel familiar with the matter, and by reviewing relevant files and communications. Based on their findings, the ombudsmen decides what, if any, action to recommend. If necessary, and in ideal conditions, the ombudsmen would simply need to explain to the complainant why the situation unfolded and the complainant will understand and have no further grievances. Inversely if the subject of an investigation is determined by the ombudsman to have acted improperly, they would attempt to persuade them to make amends. The power of the office lies in the ombudsman's ability to persuade the parties involved to accept the recommendation advanced by the ombudsman for resolving the complaint. If this solution is not acceptable, the complainant has the option to pursue action through the courts.

The work of ombudsmen is most effective at addressing discrete actions or decisions of those under investigation through recommendations and mediation. It is also important to have court circuits that would work to address larger patterns and functions, and to make stronger recommendations including deadlines and minimum required resolution metrics.

Our courts must operate in two separate settings: for organizations and for individuals. Treating organizations and individuals as distinct only makes sense, as the factors involved for the decisions and actions of each are fundamentally different.

Are the factors that influence individuals versus organizations really so different that they require separate courts? My position is that they are, in fact, completely different. An organization does not feel fear. An organization will never be in need of food, shelter, air or water in order to stave off death. When an organization dies, it is able to be resurrected. The same cannot be said for a human being.

The function of an organizational court would be to take the powers of ombudsmen further, with powers to impose sanctions and denial of services.

These powers are not to be used lightly. Let ombudsmen serve as the system's eyes and voice, identifying conditions where harm is imminent and escalating to the courts when stronger action is needed. It's best to codify this role with mandatory reporting for cases of human rights abuses. Let the courts be the arena where these powers are utilized. The courts are to become practiced architects, experts in administrating emergency orders, because all emergency orders must come through their offices. With the benefit of experience, we can hopefully expect our courts to consistently hand out orders which provide effective motivation, act as deterrents, and do not take on punitive characteristics.

Courts for individuals must have a different directive.

'Restorative Justice' is a process by which all people affected by a crime are empowered to communicate and reach reconciliation. This usually means giving an opportunity for both the victim and the person responsible for the harm to come to a mutual understanding through mediated discussion, sometimes but not always including direct communication with each other. This allows the person responsible for the harm to better understand the impact of their actions and an opportunity to reconsider their perspective which led them to behave in a harmful way to begin with.

Transformative Justice is taking this concept further, giving the opportunity for the victims and the person who caused harm to work to understand the factors which were central to facilitating the harmful behaviors. Then, to attempt to change or mitigate these factors with solutions founded in compassion and understanding.

Anyone can become an ombudsman. We have to begin with the understanding that any barrier to entry constricts and ultimately atrophies the arteries that the public must pass through to enact change. To become an ombudsman, you must create an ombudsman office.

Creating an office will require drafting a proposal, which would in many ways resemble the business plan of a law firm. The proposal will identify the term that the office will operate for, the community served and the nature of cases that the office plans to work in, personnel required, and an operating budget. A statement of intended scope would be necessary to provide guidance for scenarios such as unsuitably high case loads, exceedingly long investigations, procedures for conflicts or overlaps with court circuits, and when to transfer or create new offices to handle cases that become overwhelming.

Who votes on proposals to create ombudsman offices?

There are several places where the creation and administration of a necessary office might be obstructed by those who wish to remain unmonitored and unregulated. If the creation of offices is to be approved in a majority vote, the importance of the method for selecting who votes cannot be understated. In this case, I believe the most sure method to avoid targetted corruption of votes is to select a small number of voters by random sortition.

Proposals to create offices clearly identify the industry and region they plan to operate in, and so it would also identify the pool of candidates that will be drawn from to cast votes. We create a panel by randomly selecting five representatives and six workers, from the industry and region identified. In this way the workers will always have a simple majority, if all representatives are already on one side of an issue they must still convince at least one worker. If the workers are all on one side, the representatives will be forced to offer more attractive compromises to the united workers.

What powers does the panel hold over the ombudsmen office?

The approval process progresses in stages. First, the power to approve, deny, or request revisions to the proposal to create an office. Then, a collaborative effort to draft a charter which lays out the relationship and powers of the panel to the office. The panel will continue to monitor the actions of the office through periodic hearings and reviews. The panel may create their own metrics and measures, or they may remain informal conversational meetings, or they may be conducted somewhat like the courts. It's all up to what the ombudsmen and panel can agree to.

Final thoughts on panel composition.

No one should be forced to work on a project they do not wish to participate in. Panelists should have the option to give up their position to another person. However, a voluntary mechanism for exiting the panel presents an additional opportunity for obstruction. It's not difficult to imagine a scenario where panelists become targets and are pressured to resign. Mechanisms must be in place to limit the potential benefits of such an effort. The simplest method would be to select replacement panelists randomly from the same pool the original candidates were selected from. However, I think there is also room for a mechanism to appoint a replacement directly. Approved unanimously by the other panelists, a panelist could appoint their replacement directly, again limited to choosing from the pool of candidates that was originally drawn from.