Ombudsman: Mediation versus Regulation

//Hebrew University in Jerusalem PhD student Efrat Daskal discusses media accountability and the potential use of mediation by regulatory authorities. With her role as assistant to the ombudsman of the Second Authority for Television and Radio in Israel, Daskal brings a unique perspective to the topic of media regulation.

Ombudsmen became popular as an instrument in the media regulatory system during the 1970s, acting as a liaison or mediator between media organizations and the public. However, their status has deteriorated tremendously in recent decades due to the ambiguity surrounding the nature of their role and authority. In some organizations, the ombudsman responded to public complaints, serving solely a public relations role, while in others the ombudsman functioned more as an internal auditor or critic. Even in some of the organizations where the ombudsman served as an internal critic, he or she often lacked real independence and relied on the cooperation of other staff.  Today the Second Authority for Television and Radio in Israel is one of only a few media outlets to employ ombudsmen.

When the office of the SATR ombudsman receives complaints regarding an offensive broadcast, it must decide whether it is best handled to initiate accountability through the liability track or answerability track. When a complaint reveals a breach of regulatory rules, the liability track takes place and the ombudsman hands over the complaint to a regulator. The regulator then decides whether to issue a fine or a warning against the broadcaster. This track has the potential to create an undesirable “chilling effect” on the future conduct of broadcasters.

When an ombudsman finds a complaint justified not because of any regulatory rule violation, but because of what can be defined as unethical conduct, the answerability track can be undertaken, operating through a voluntary exchange of information and ideas between the ombudsman and the broadcaster, rather than through punishment.  In these cases, the ombudsman can reprimand the broadcasters or recommend they change their conduct; in extreme cases the ombudsman can even demand an apology from them. This track has a cooperative form of communication because it has the potential to create a dialogue between the media and the public via the ombudsman, which can lead to a voluntary reaffirmation by media actors of ‘various norms relevant to the wider responsibilities of the media in society’.[1]  The question arises as to the possibility of creating this dialogue practically and effectively.

The construction of dialogue – The case of Jacont and rape victims

One of the ways in which the SATR ombudsman creates such a dialogue is by conducting actual face-to-face mediation between citizens filing complaints and broadcasters. This procedure takes place only when the ombudsman reaches the conclusion that both parties have the potential to benefit from the mediation.  The ombudsman contacts both parties asking for their consent to participate in mediation in order to find a solution that would serve the interests of both parties. The mediation is voluntary and is not legally binding, but past experience has shown that the goodwill of both parties might lead to successful results.

A good example of a successful mediation is the case of Varda Raziel Jacont and the Association of Rape Crisis Centers in Israel. Jacont is a well-known and controversial Israeli psychologist who advises listeners on her radio talk show and  is notorious for her outrageous advice. On the 2nd of December 2012, a young girl wrote her a letter confiding that she had been raped by a friend, describing her distress and misery, but won no sympathy from Jacont, who attacked her, claiming she was hysterical and had over-reacted to the incident. Shortly after the broadcast, hundreds of complaints reached the ombudsman and several Facebook campaigns were launched, demanding not only the firing of Jacont, but some sort of compensation from the radio station. Jacont apologized for her remarks and a fine was even levied on the station by the regulator, but this did not mollify the irate complainants.

Consequently the ombudsman decided to initiate a mediation process between the Association of Rape Crisis Centers in Israel (one of the complainants) and the manager of the radio station. Following the mediation, a special collaboration began between the two parties, and the radio station aired a special program (in Jacont’s time slot) dealing with the subject of rape victims. Furthermore, there is reason to believe that the two will continue to cooperate on future projects. In this manner, the broadcaster was given an opportunity to amend its image and restore public trust; the association received an opportunity to deliver a valuable message to the public; both the regulator and the ombudsman positioned themselves as mediators in the eyes of the public; and from the professional and ethical point of view, the procedure reinforced professional and social norms regarding the appropriate mode for treating rape victims.

When and why will mediation work?

As can be inferred from this case, the mediation process can succeed only when both parties are interested. One might question the broadcaster’s incentive to participate in a mediation process with offended citizens.  Often the broadcaster may want to avoid a lawsuit filed by the protesting citizens, as although mediation is not legally binding, it sometimes leads to the cancellation of lawsuits. Alternatively the fear of public scandal, particularly social media fueled may motivation the organization to participate in mediation, which can lend credibility and trustworthiness to the organization’s image.

One of the problems media regulators face in their everyday work, at least in Israel, is their inability to establish a dialogue with the public. Thus, quite often the regulator is perceived by the public as indifferent to its needs, though the truth is quite the opposite, since a regulator’s first and foremost obligation is to the public. As this article demonstrates, the positioning of independent ombudsmen within regulatory agencies can strengthen the position and status of the public vis-à-vis the ongoing dialogue between the different media actors about professional and social norms. It also enables the regulator to communicate better with the public and as a consequence regain its lost legitimacy, which is of course much needed if it is to function.

The combination of regulatory and voluntarily media accountability systems is not very common, at least not in Israel. Yet, as can be seen, it has the potential to create to create a more positive method to construct media accountability and is worthwhile for media scholars and practitioners to explore in depth.

//Efrat Daskal

[1] McQuail, D. (2003). Media Accountability and Freedom of Publication. Oxford: Oxford University Press


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