Naomi spoke today at the European Law Institute (ELI) annual conference in Vienna. Her panel discussed the preliminary findings of the joint ELI-ENCJ Project on the Principled Relationship of Formal and Informal Justice through the Courts and Alternative Dispute Resolution.
The Project has already consulted on the risks arising from different methods of ADR, and the relationship between court-based and non-court-based dispute resolution processes. It also consulted on a code of good practice as to what courts and judges need to assess when considering or requiring the parties to participate in an ADR process. The feedback received will be analysed and further discussed during the panel. The Project Team will present its final report at the end of 2017.
Naomi, drawing upon empirical data, outlined the importance of taking the user perspective into account when designing ADR – especially thinking about access to justice and how vulnerable users can be integrated into the process. Further, the complex relationship between the courts and ADR needs to be understood though the lens of the national context as well as the type of dispute being talked about.
Not all ADR is the same!
A copy of the conference programme is available to download here: Conference Brochure.
Earlier this year, we published research commissioned by Citizens Advice investigating whether the current provision of Alternative Dispute Resolution (ADR) in the UK met consumer needs. In this post we provide a brief summary of our findings.
What the research is about
Our research is about the help available to consumers who have experienced a problem with a business that they have been unable to resolve on their own. Some of these problems end up in the small claims courts, but increasingly consumers can turn to Alternative Dispute Resolution (ADR) schemes.
Our final report of the research does 3 things.
- It provides an up-to-date map of ADR schemes available to consumers in the UK;
- It presents a detailed comparative assessment of a small selection of these schemes;
- It sets out consumer insights drawn from interviews with consumers who have used ADR.
Research in this area comes at a crucial time. There have been longstanding criticisms of
ADR provision for consumers and there is wide consensus that the system is incoherent and confusing. This is, therefore, an opportune time to be thinking about how to ensure that ADR meets consumers’ needs and serves their interests.
Three core messages arise from the research.
The ADR landscape is confusing for consumers. There are now more ADR schemes than ever. While this is not a problem in itself and has improved coverage, it has further added to the complexity facing consumers. And there remain significant gaps and overlaps. Where there are gaps, consumers are left without remedy. Where there are overlaps, consumers are left confused. The wide variety of ADR processes and inconsistent terminology are also a source of confusion.
The current ADR landscape is not designed with consumers’ needs in mind. Except where ADR is mandatory, businesses have the power both to decide whether to take part in ADR and, if so, which ADR scheme to use. In some sectors, multiple ADR schemes compete with each other. The result is that consumers’ needs are not being met. Often consumers do not know where to complain.
Improving ADR provision is hampered by a lack of good quality data. Simply describing the UK’s ADR landscape is a complex task. Information is not readily
available and there is significant variation between ADR schemes in terms of transparency. Lack of good quality comparative data makes tackling the shortfalls in ADR provision more difficult. It also means that feedback loops that might improve business practice are less likely to be present. Overall, it means that ensuring consumer needs are met is difficult to assess and assure.
To address the areas for improvement we identified in this research, we made 6
Recommendation 1: mandatory ADR should be extended across all consumer sectors
Significant gaps continue to exist where businesses choose not to sign up to an ADR scheme. The government should adopt the principle that participation in ADR should be mandatory across all consumer sectors, regardless of the sector involved or the value of the claims consumers are making. This should be monitored and reviewed if credible evidence emerges that the system is being abused. There are certain areas that may require special attention in relation to this recommendation including the private rented sector and consumer-to-consumer transactions.
Recommendation 2: in regulated sectors, ADR should be limited to 1 provider in each sector.
In regulated sectors, it is particularly important that the different actors (regulator, consumer advocate and ombudsman) work closely together. Therefore we recommend that there should be only 1 ADR provider per sector. The potential benefits of competition in terms of raising standards can be maintained, for example by regularly inviting tenders for the contract to provide the ADR scheme.
Recommendation 3: in non-regulated sectors, BEIS should take steps to make the ADR landscape easier for consumers to navigate.
This can be done in a way that tackles gaps and overlaps in the ADR landscape at the same time as preserving standard-raising competition. In non-regulated areas, should ADR become mandatory, we recommend that the Department for Business, Energy and Industrial Strategy (BEIS) work with industries and key stakeholders to make ADR more user-friendly. BEIS should consider whether having 1 ADR provider per sector is the right solution for consumers. As a minimum, there should be a single branded entry point for consumers wishing to make a complaint, with consumers shielded from
Recommendation 4: ADR should be branded more consistently.
There is a wide variety of ADR types and processes available and a lack of clarity over terminology. In order to consolidate ADR as a key means by which consumer disputes are resolved, ADR needs to develop a clear, common, and well-known brand. Recent years have seen an increase in the number of ADR schemes branding themselves as ombudsman schemes. This may provide a starting point for a more consistently branded ADR offer.
Recommendation 5: ADR schemes should harmonise their practices wherever it is in the consumer interest to do so.
BEIS should work with the industry and key stakeholders to harmonise practice across ADR schemes. For example, consumers should be able to expect similar levels of procedural fairness and support in making a complaint regardless of the ADR scheme they are complaining to. The diversity of process and practice between ADR schemes is confusing for many consumers. While there is no need for identical processes to operate, without some common approaches and terminology, it will not be possible to develop common standards, benchmarks, and reporting requirements.
Recommendation 6: a single authoritative body should be tasked with setting common performance standards, benchmarks, and reporting requirement for all ADR schemes.
While some positive developments in performance standards are already taking place, there is a need for more action. In particular, agreed benchmarks and common reporting requirements across all ADR schemes would make it easier to compare performance and raise standards. Having a single authoritative body with oversight of the ADR sector would also ensure that quality is maintained.
Since our report was written the UK has seen a general election and continues to experience significant uncertainty as a result of the Brexit process. The UK’s post-Brexit consumer policy is unclear and the extent to which this aspect of consumer policy will be prioritised must be in doubt. Nonetheless, the issues we have identified in this research are unlikely to be remedied without significant government intervention.
The full report of the research is available to download here,
On 15 and 16 June 2017, Naomi attended a meeting of the National Energy Ombudsman Network (NEON), including a workshop on energy poverty.
Photo: Naomi presenting in Barcelona at NEON meeting
Naomi gave NEON members an overview of the ESRC Just Energy project and explained how we intend to investigate access to justice for vulnerable and energy poor consumers in Europe. You can find a copy of the presentation here:
Photo: a slide from Naomi’s presentation setting out our research questions
At the subsequent workshop on energy poverty, Naomi explored various issues in relation to energy poverty and told delegates about the outcomes of an expert seminar held in London in September 2016 where the issues energy poverty and consumer vulnerability had been explored.
You can find a copy of the presentation here:
The meeting and the workshop included excellent discussions of the challenges of tackling energy poverty and vulnerability and we look forward to further discussions on these issues with colleagues across Europe as our project gets off the ground.
On 8 and 9 June 2017, Naomi and Chris presented some of their on-going research at the Onati International Institute for the Sociology of Law.
Photo: Chris and Naomi against the beautiful backdrop of Onati in the Basque Country
The workshop was co-organised by Prof Marc Hertogh and Dr Richard Kirkham, and convened ombuds experts from across the world to discuss the ombuds institution under the theme ‘from promise to performance’. The outputs of the research will be available in a Handbook of Ombudsman Research to be published in Spring 2018. Abstracts of Naomi and Chris’ papers are provided below.
How Do Complainants Experience the Ombudsman Procedure? (Naomi Creutzfeldt and Ben Bradford)
Photo: Naomi presenting her paper at the Onati workshop
Despite the importance of alternative dispute resolution (ADR) to our justice systems, not much attention has been paid to how people, who use this system of informal justice experience it. ADR bodies are meant to be accessible and help citizens with everyday problems they encounter with the provision of goods and services in the private sector; or with the provision of public services. Are these bodies designed in a user-friendly manner? In a comprehensive empirical study I asked people, who had just been through an ombudsman procedure (ADR provider) how they experienced it and what they expected from it. The empirical data collection in the project was a combination of quantitative (satisfaction survey) and qualitative (interviews, focus groups) methods. Over a period of six months my survey was sent out to recent users of fourteen ADR providers in Germany, France and the UK. The survey produced just fewer than 3.000 responses. One of the findings of the project was that, unlike initially hypothesized, decision-acceptance (and trust) is linked to users being heard, having a voice, and especially the first contact with the ombudsman staff proved to be very important. By focusing on the dataset of the German insurance ombudsman and the Financial Ombudsman Services in the UK, this chapter sheds light upon how users of ADR bodies experience the procedures and what can be done to improve this experience to enhance decision-acceptance and, ultimately, trust in the institution.
What Do Government Agencies Learn from the Ombudsman? (Chris Gill)
Photo: Chris presenting his paper at the Onati Workshop
The ombudsman is often seen as having a twin role: on the one hand to provide remedies for individual injustices and on the other to help government agencies improve their processes for the future. The ombudsman’s inquisitorial method, its closeness to bureaucratic settings, and its freedom to make wide ranging recommendations have been seen as making it particularly suited to performing the latter role. Some ombudsmen have powers to launch systemic investigations, at their own initiative, which aim to tackle major problems in public administration and bring about large-scale changes. Others use more traditional and less high profile methods, such as offering training to government agencies, publishing case summaries and reports, and issuing guidance on principles of good administration. There are suggestions around the world that the learning function of ombudsmen is becoming increasingly important, as ombudsmen seek to fulfil a distinctive role within the administrative justice system and to ensure that the value of their work will be evident to policymakers and stakeholders. Some ombudsmen also have remits that extend their functions significantly beyond the jurisdiction associated with the so-called ‘classical’ ombudsman – anticorruption, human rights advocacy, and audit functions are all part of part of the remits of some ombudsmen. What government agencies may learn from the ombudsman, therefore, is likely to vary across the world and the functional diversity of the ombudsman institution makes international generalization a complex endeavor.
This chapter will consider these issues and address three main areas. The first is the normative debate surrounding the ombudsman’s learning functions, which explores the theoretical arguments around what ombudsmen can and should be doing. The second is to consider the various means by which ombudsmen around the world seek to being about learning in public bureaucracies. And the third is to review the empirical data about whether and how ombudsmen may help government agencies to learn. In considering these issues, the chapter will argue that – while recognizing the contribution that the ombudsman may make to a well functioning system of public administration – we should generally be skeptical of its ability to bring about widespread changes in administrative practice. The inherent complexity of public administration, its limited capacity for organisational learning, and the multiple pressures and influences which affect day-to-day administration leave only a limited space for the ombudsman to exert an influence. The chapter will conclude with some reflections on the factors that facilitate and prohibit the realization of the ombudsman’s learning function.
Please get in touch if you would like further details about our recent papers!