Dispute resolution and Brexit

The European Commission’s online dispute resolution (ODR) platform has finally been launched in the last few days, in response to the EU’s alternative dispute resolution (ADR) package of 2013. This will have an impact on lawyers in two ways.

First, its aim is to send legal traffic away from lawyers and the courts towards ADR, for complaints relating to goods or services bought online. This is how it works. A consumer or trader submits a complaint online in his or her own language through the platform. Once the other party has received it, the two parties have 30 days to agree on which dispute resolution body will handle the dispute.

The platform automatically sends on the dispute to the agreed body, which has 3 weeks to decide whether it is competent to handle it, and 90 days in which to arrive at an outcome.

The site has a list of agreed ADR bodies, which meet the EU’s standards and are registered with national authorities. There are 15 listed for the UK. Some deal with disputes only in the UK, others give numerous other member states in which they are competent to act. Some deal with just one service, while others list a large number of goods and services they will handle.

And this is where the second impact on lawyers will arise. You might want to use one of these bodies if an online client raises a complaint about you and wants to use ADR. There are three on the list which state that they deal with legal services: ProMediate (UK) Limited, the Association of Chartered Certified Accountants, and the ADR Group.

As already reported in the Gazette, the Legal Ombudsman unexpectedly withdrew late last year its application to become an approved ADR body for the purposes of the 2013 directive. As a result, it cannot be listed on the new platform.

But that did not remove the duties from solicitors under the directive – Directive 2013/11/EU on ADR for consumer disputes.

The Law Society has issued advice to solicitors on how they should fulfil these duties. This is what the relevant part says: ‘Solicitors must, at the end of the first-tier complaints process: provide information on the Legal Ombudsman as the statutory complaints scheme for solicitors, and inform the client, on a durable medium:

1. that they cannot settle the complaint with the client;

 2. of the name and web address of an ADR approved body which would be competent to deal with the complaint, should both parties wish to use the scheme; and

 3. whether they intend to use that ADR approved body.’

As the Law Society highlights later in its advice: ‘Solicitors should note that, although they are required to provide information about an ADR approved body, they are not required to submit complaints to the body. The obligation in the ADR Directive and government regulations is to give information (only) and not to agree to the use of the approved ADR.’

Blast it, now we come to the referendum. It is the duty of all writers on topical questions to bore their readers about the in-out question until 23 June. What impact would a UK departure from the EU have on this particular initiative? Well, if we vote to leave, and once the endless further negotiations and unpicking of laws are over, the 2013 directive would presumably no longer apply, and so lawyers would no longer have to include ADR information in their client engagement letters in the format recommended by the Law Society. That does not seem a big deal for either side in the campaign, since it is not a heavy burden.

But the bigger impact would be on the population of consumers. The new European ODR platform applies only to EU member states. Citizens of Norway, Switzerland and Iceland cannot use it. So, the big step forward that it represents in terms of the ability to solve cross-border online consumer disputes more easily and in one’s own language would be yanked away from UK consumers when buying online goods or services in the remaining single market.

Although this is hardly the most critical issue in the campaign - it is not about security or immigration or sovereignty - the question remains whether exclusion from the platform will improve our quality of life. It is a good example of something otherwise forgotten in the current political trumpetings back and forth.

The debate is not only about the big topics, but also the countless other small ways which, when accumulated, might make our life better inside the EU – easier rules on cross-border succession or divorce, minimum procedural safeguards on arrest, and ceilings on roaming charges on mobile phones. These also need to be put in the balance.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs