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The Car Crash of Legislation That Is Missing The Opportunity To Expand Mediation

Despite being one of the major creators of civil justice throughout the world, it is shameful that, with over 100 years passing since Judge Mathew gave us the famous phrase about the courts sharing the same door policy as the Ritz Hotel, that more and more people find themselves unable to afford justice.

Whilst Alternative Dispute Resolution (resolving disputes outside of court) has the potential to indeed make justice open to everyone like a Travelodge rather than the Ritz and the European Directive on Consumer ADR sets out to deliver, at least in consumer disputes, greater access to justice, the implementation to date in the UK has been nothing short of a car crash. Consider these facts :-

1. There is widespread non–compliance not only by SME retailers (who may be able to claim ignorance of the law – see 2) but major High St names like TK Maxx, John Lewis, PC World, Maplin, Virgin etc,

all companies who presumably employ staff to monitor and apply consumer law.

2. Despite many promises in private emails to the authors the responsible Government Department (BIS) has totally neglected to promote awareness amongst business. The senior official has stated they were being moved on to other matters.

3. Despite the high level of gross breach (failure by major companies to carry the mandatory link to the EU's ADR signposting platform and failure to notify complainants of an approved provider of ADR), there has been total neglect by the Chartered Trading Standards Institute to enforce through prosecution. A test case against a major brand would suffice to alert and encourage compliance by others.

4. The opportunity of the legislation to give to civil justice as a whole much needed encouragement of the far superior form of ADR that is mediation is being lost. If the public can begin to experience mediation in the busier field of consumer disputes, it would help more quickly embed mediation into our society’s vison of justice and make engagement in mediation for more complex disputes much more frequent. Instead by lumping mediation in with ombudsman style adjudication, a much less satisfactory process with at least one party, and often both, dissatisfied with the outcome, it lowers the satisfaction level of all forms of ADR. By applying/permitting the same audit fee barrier to approval under the Regulations, whilst overseeing and encouraging a ‘race to the bottom’ on fees, and, as a result, quality of service, with no explanation to business of the additional benefits of mutual, rather than imposed, solutions, CTSI/BIS are effectively discouraging improved forms of ADR and creating a barren market for the mediation providers.

5. The failure to take up the opportunity permitted by the EU to make participation in ADR mandatory on business, and thus reduce the above negative impact, is another lost opportunity. Instead the very trust that the Regulations were intended to generate in consumer purchasing throughout Europe is threatened. If a business complied and placed the link to the EU’s ODR platform, a prospective purchaser would be encouraged to buy from that company rather than from another website that did not contain the link. Imagine what the consumer will think when, after finding a problem with the product or service, and remembering the link and clicking on it and completing the complaint form, he is then informed that the business does not wish to participate in ADR. He will, understandably, feel that the trust he had placed in that company, because of the link to the EU’s platform, had been betrayed. At the very least, we should be requiring UK companies to state on their website, alongside the link, whether or not they will comply. We have experienced this reluctance to participate on numerous occasions with big name companies including Sainsbury's and Debenhams.

6. Both BIS and the European Commission have their heads in the sand and are refusing to discuss the problem that, following Brexit, the hyperlink that UK companies will be still required to carry under UK law would point to a platform that could no longer refer consumers out to the UK based ADR providers.

However damaging it may be, a car crash is cleared up fairly speedily and repairs carried out. This car crash however is being left to remain in the middle of the road as we are all forced to drive around it. Imagine, however, the saving of public cost of the small claims track of the civil court, if this law was properly operated. Furthermore, think of the benefits to business of increased sales to consumers who have demonstrated through buying patterns (see the clear evidence of the economic benefits to business as revealed in this study based not on opinion but on actual consumer activity) that they prefer to buy from websites on which the sellers willingly participate in accessible forms of ADR.

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