Monday, 7 October 2013

Arbitration

I was interested to learn a bit more about the court service's arbitration service recently. When I had previously taken people to court this was not available, but in a recent case the paperwork offers both parties an arbitration as an option.

Obviously, having previously encountered arbitration in the way of The Ombudsman Service for ADR I was a tad sceptical, but the fact that we could go on to a normal hearing if the arbitration did not work meant there was  no risk. So, I had a case go to arbitration.

One of the key, and rather annoying, points is that the arbitration is that it is confidential. Part of the agreement to arbitrate, and the final settlement agreement that can be reached by arbitration, is that the details are confidential to the two parties. This means I am unable to comment on the specific case, sorry.

I did, however, discuss a couple of points with the arbitrator, and he is happy for me to blog on the process itself. Also, he noted, very sensibly, that there was no point trying to change things that were already posted on my blog, even about the specific case - what is published is published. This seemed a sensible enough compromise that I agreed to the terms in this case. Interestingly, in a case that is coming up (and not going to arbitration), the other party (Deane) has offered to settle if I remove all details from my blog. This was the same tactic tried by someone else previously. I did not agree to his offer, or agree to make his offer confidential. With any luck this will go to court in November and we'll have a much clearer case on the whole spamming issue. The case is pretty sewn up, but the defendant seems determined to fight it having won a case before (where the target email was not an individual subscriber, from what I can gather).

Anyway, the arbitration process was simple enough. They book a one hour slot, and call you each on the phone, in turn, to discuss the case. The objective is to try and come to a settlement without having to go to a hearing, and both parties have to be prepared to try and do that, which may mean compromise. The arbitrator was friendly and helpful and offered useful advice. He had read the paperwork that we had submitted to the court (claim and defence and so on). If the agreement is reached, then that binding.

It as amusing that he said he had learned something from this as he did not know you could take action against spammers :-)

I did ask what if one side does not stick to the settlement agreement, and apparently this agreement is not simply like a normal contract where you would sue for a breach of contract - if the agreement is broken then I could apply to the court for summary judgement, of if I prefer, to have the case go on to a hearing. A timescale is agreed for the parties to do what is agreed. So it is quite a simple process.

Another key point is that the arbitration call is free of charge, though you do have to made a claim in the first place which can cost as little as £25 in the county court.

This does rather lead to some serious questions about the ADR process that telcos are forced to join. The cost for ADR is of the order of £350+VAT just to take a case. Some recent rule changes are being considered where the arbitrator can decide that the case is vexatious and dismiss it, but that still means the case fee is paid by the telco as I understand it.

Now, if the county court service can do an arbitration call, and even a hearing in front of a judge for a few tens of pounds, why on earth would ADR cost £350? Something is very wrong there.

What I have suggested via ISPA to CISAS is that taking an ADR case should have two stages. The first stage would be an arbitration call just like the court service's arbitration. This would allow many cases to be resolved, and would allow the arbitrator to determine if a case is totally unfounded or vexatious. Only if the arbitration call fails would a full ADR process then happen. Such a call could be done for tens of pounds, if that. Even though this would (unfairly, by design) fall on the telco, it would allow cases to resolved quickly and cheaply, and bogus cases to be dismissed cheaply.

In an ideal world, that initial cost, lets suggest £20, would be payable by the claimant if the case is dismissed or resolved in the telco's favour. Perhaps, to come to agreement quickly, the telco could offer to cover that fee, if it is agreed that the issue is just a misunderstanding. That would mean that telcos would not be unfairly burdened with bogus case costs, and would create a small but very reasonable barrier to abuse of the process. Apparently the EU regulations creating the need for ADR do not actually say it has to be free, so this would be sensible. If that was the maximum risk to claimant, e.g. a full ADR cost is always paid by telco, that would still avoid a lot of risk for the claimant.

That's the suggestion. If any other ISPs think this is sensible, please let ISPA know.

6 comments:

  1. I would assume that the county court system is subsidised with public money, whereas the ADR system probably isn't (and IMHO shouldn't be either). However, someone shouldn't be able to make a vexatious ADR complaint and cost the ISP £350 without being penalised for it.

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    1. Quite, but a simple matter of a few calls should be in the tens of pounds, and limited in time and effort. Worth a try.

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  2. Can you even let us know if settlement has been reached (even if you can't let us know who agreed to settle with who) or if it is still ongoing...

    I'm unclear whether court decisions are actual a matter of public record (it appears they may be, but getting them is difficult) - do you think pre-court arbitration should also be a matter of public record?

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    1. The case was resolved, and I do find it odd that it has to be confidential.

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    2. The requirement for confidentiality seems like a pretty good reason not to go to arbitration, especially if it's a "test case" that you will want to be able to tell people about.

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    3. Indeed, hence not electing to go for arbitration in the Deane case coming up, or accepting offers that are conditional on removing items from my blog.

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