I have not mentioned ADR for a while - it was a dark time - a time of changing my views on society and the rules of law and justice beyond reason. I was not in a happy place...
But this week I have a meeting that involves ISPA. It seems OFCOM and/or CISAS are interested in changes to the ADR system. This has to be good!
To explain, for those that do not know, ADR is meant to be an alternative to using the courts to resolve a dispute, the clue is in the name Alternative Dispute Resolution. Supposedly the courts are too scary ?!?!?! It is designed to be biased in that the telco pays regardless and that decisions are only enforced against the telco - so it is in no way an alternative to court for resolving disputes. A court has power to make judgment either way and enforce it. A court awards costs (albeit minimal) against the loser in most cases. ADR is a kangaroo court type of alternative to court.
Given that the court service itself has an ADR - a telephone call to the parties for an hour to try and resolve the dispute by arbitration - at no extra cost as part of the process, having an alternative to this alternative to court is simply not necessary anyway.
The one case we had was wrong in every conceivable way, from the fact the claimant was clearly a communications provider, to the complaint being later that the 6 month time limit, to the fact that all they asked was to be "let out of the contract with no penalty" which had already been done, to the final judgment that agreed we were not in breach of contract but insisted we pay compensation and write off charge that post dated the dispute and had been agreed in writing with the complainant already. Legal advice was to pay up - in hind sight I wish I had not.
My huge challenge is keeping my cool and proposing changes that have a positive effect on the legislation and process.
This will be hard, very very hard.
One has to wonder what could change. Ideas so far....
1. Scrap it - allow courts and their arbitration option to be used instead.
2. Keep it - but accept courts arbitration as valid ADR scheme.
3. Consider loser pays a fee of some sort to discourage bogus claims.
4. Have a front end (free or covered by claimant fee) vetting of claims.
5. Have a means to reject bogus claims with no cost to ISP (as above really).
6. Have an option of lower cost simple mediated arbitration call like the courts do.
7. If must be ISP pays, allow ISP to cover court fee to allow access to courts arbitration scheme as way cheaper than any of the ADR providers now.
8. Don't have ADR for small ISPs. A size that covers us!
9. Regardless of other changes, make some clear cut rules - a point that a dispute is formally closed and so cannot ever go to ADR later (as part of compensation offer maybe). A point at while disputes formally starts (actually meets some basic criteria for a valid dispute). Remove all of the ambiguities that exist now.
10. Allow ADR opt-out by end users not wishing to burden ISP with ADR. Most of our users would happily opt-out and confirm so clearly at time of order.
11. Clarify "communications provider" exception in the law - it seems to cover anyone "operating a communications network" which could mean they are in charge of a gigabit switch at home.
We have made some constructive suggestions.
We have understood more about how CISAS work and it is better than we expected.
We have suggested the concept of a dispute over "quality of customer service" is a nonsense as (a) there is no legal basis for compensation for poor customer service (we exclude customer service from our contract even), and (b) we would not actually "dispute" such a complaint (we'd dispute a claim for compensation for such as a contractual matter which CISAS do not handle either). They were very confused by the idea that a complaint could fail to constitute a "dispute" if we do not disagree the complaint. They point blank refused to agree on a definition of "dispute" in the meeting.
However, overall, a good meeting.
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I'd agree with 4,5,6,8 and 11 of those, certainly. 1,2 and 7 suggest a better ADR provider is needed (as do 4 and 5 really, the ADR should have a free/trivial-cost "this claim is junk" route). Do the current ADR options suck because of the framework they work in, or just because nobody's offering a decent option yet?ReplyDelete
What are the barriers to entry on setting up an ADR provider? Could you not set up your own and charge yourself nothing?ReplyDelete
IIRC the only ADR schemes that are valid are Ofcom approved, so setting up your own isn't likely to work.Delete
It does seem a license to print money though - you get to arbitrate (ie. send a few emails, taking a few months to do it) and you get a nice fee to do so, and your opinion is binding even if it doesn't make sense.
How has the new ADR scheme worked out by the way, is no news good news?ReplyDelete
Well, not cases, thankfully.Delete
One key point is that they confirmed very clearly that if we have issued a county court claim against a non paying customer, then the customer cannot take that to ADR. That would have saved us in the last instance and means we have to issue claims in all cases of non payment to mitigate the risk of ADR (and this is meant to help consumers?).
The other point is they stated that the "duty of care" for non "customer service" complaints comes from he sale of goods/services legislation default "reasonable skill and care" contract term, and that it is an OFCOM rule that it is the case. They then said that this applied before a sale was even made (wrong!) and that we could not remove that obligation (also wrong). We asked them to confirm that this did not apply before a sale being an implied *contract* term, and the did not reply. We pointed out the law allows us to remove that default as long as what we have is "fair" and so we could remove any obligation to provide any "Customer Service" from the contract, they also declined to comment. Now we know the OFCOM mandated reference we could easily have killed off the one claim we had.
So improvements in understanding now.
I mean for customer service complaints.Delete
Your experience makes me think of KafkaReplyDelete