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Different perspectives – A strategic approach to change in the ADR industry


By Tresca Rodrigues

The alternative dispute resolution (ADR) industry is at a pivotal point of change and its ability to respond effectively is vital for future success.

Changes to the ADR landscape (EU ADR Directive, the government’s civil justice agenda, legal aid cuts) have pushed dispute resolution away from the expense of a lengthy court process. These changes continue to gain further momentum with the recent Civil Justice Council’s recommendation on the use of online dispute resolution (ODR) to settle claims valued under 25K. This would use online ADR as the major component in the resolution process.

All of this has thrust ADR services into the limelight as a much-needed alternative that should stand up to robust scrutiny as being fit for purpose, cost-effective, transparent and accountable.

It must deliver consistently high quality services across the EU board. The public should feel confident in assuming the same level of service regardless of which UK sector the dispute falls within or which member state deals with a sectoral dispute.

Identifying the issue

The ADR Directive has set a minimum baseline standard for accessibility and service quality for EU schemes dealing with consumer issues. Currently, the ADR landscape across member states is extremely varied with differing levels of experience, maturity and approaches. These factors mean that, despite the baseline standard, consumers will continue to be faced with a disparity in accessibility and quality levels, depending on which ADR scheme they use. Therefore, while the setting of minimum standards is an important first step, it doesn’t fully achieve the Directive’s aim of a ‘holistic’ approach with ‘consistent’ quality.

While ADR bodies must meet the set minimum standards, they must also continually strive to improve in order to be responsive and agile in today’s changing environment. To do this, and maintain consistency, a coordinated approach to evolving best practice would make sure all providers can move forward together.

Addressing the issue

An approach could be employed that initially involves defining the elements of what makes good ADR practice. Best practice from current schemes, research and latest developments can then be amalgamated, distilled and translated into a single overarching self-regulatory framework. This framework can be shared with ADR bodies to implement best practice as well as providing a guide to competent authorities as part of their certification process.

Essentially, the framework would define good practice principles for use by ADR providers. These can be converted into practical templates, toolkits, with examples taken from existing schemes (indicating which elements work best under certain conditions). By working this way, new ADR schemes can develop and mature quickly while current schemes can be further improved where deficiencies exist.

The framework could have an essential ‘core’ element that covers how to deliver the Directive’s requirements practically – while still allowing for flexibility to cater for the different way schemes operate.

It would also cover two further objectives. Firstly, increasing the core offering to give more depth and the expansion of best practice areas, such as:

  • knowledge management

  • dispute prevention

  • consumer vulnerability

  • publishing of decisions and complaint data

  • auditing

  • governance

Secondly, proactively identifying ways to take full advantage of emerging trends, wider peer-group thinking and technological developments including:

  • the full benefits of ODR

  • the potential of data analytics for complaint intelligence (including big data)

  • international standards

This would provide a robust comprehensive framework that remains relevant in a changing landscape as well as having a more powerful voice in advocating positive change through policy and practice.

It has been proposed that creating and advertising a recognisable brand may raise consumer awareness of ADR. The brand promotes the vision of “This is who we are. This is what we do”. The framework underpins that by saying “This is how we will deliver that vision”.

The Ombudsman Association (OA) might be well-placed to oversee this process in its role as a promoter of good practice within complaint handling.

Consistent ADR quality EU-wide through shared best practice

To promote consistent ADR quality across the EU, Article 16 of the Directive calls for member states to conduct regular exchanges of best practices. It also states that the Commission shall support and facilitate the networking of national ADR entities and the exchange and dissemination of their best practices and experiences. Therefore, with the Commission’s support, could a new function be set up to allow collaboration between member state ADR representatives (possibly OA for the UK) to set and share best practice via a single online EU-wide platform that all ADR bodies can access?

This platform could also support the call for cooperation between ADR entities and national enforcement authorities to report recurring issues (Directive’s Article 17). It is likely that some established providers may already have in place the appropriate technology and processes to obtain this intelligence.

Facilitating the sharing of this ‘know-how’ across all ADR providers would help achieve this objective.

A shared platform will also enable smoother coordination between states to promote the ADR brand, in a consistent way across the EU.

Summary

Changes in the market have shone the spotlight on ADR to provide an effective way to resolve disputes. How we adapt to these inevitable changes is crucial. There is a limited window of opportunity to put in place the right structures and processes by effective collaborative working, so avoiding duplication of effort. There is a strong business case for doing so. This would include:

  • the provision of a high quality, affordable and accessible justice for all

  • driving the EU single market economy

  • gaining public trust and confidence

  • the effective channeling of resources

  • the relevance of services in an evolving environment

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