The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015
REQUIREMENTS
1.1 To Consumers and Traders
1.1.1 Maintain an up-to-date website which provides the parties in dispute with easy access to information concerning the ADR procedure, and which enables consumers to submit an initial complaint submission and the requisite supporting documents online.
The NetNeutrals EU platform is being developed specifically to be in compliance with requirements for certified ADR providers. The website and process is designed to be simple to understand and navigate. Program rules and FAQs will be posted directly on the site. Consumers can initiate disputes from the homepage of the site and both parties can upload documents and use the dispute resolution tools. Please see attached Process Flow from Avastone. **Note: this is a preliminary flow and will be updated by 1/7. This document is included as a sample only.**
1.1.2 Provide parties, at their request, with information concerning the ADR procedure in a ‘durable medium’.
The website provides all parties access to program rules and FAQs. Additionally, printed materials are available to parties via post or email.
1.1.3 Enable the consumer to file an initial complaint submission by post.
NetNeutrals EU will accept initial complain submissions via post at its UK office located at 3 Armley Court, Armley Road, Leeds, LS12 2LB
1.1.4 Enable the exchange of information between the parties via electronic means or, if one of the party wishes by post.
The website allows both parties to upload documents and make statements via the online forum. Parties can also submit information and documents via post through the NetNeutrals EU office. Program administrators then disseminate the submitted information to both parties
1.1.5 Accept both domestic and cross-border disputes, including disputes referred via the new online dispute resolution platform.
NetNeutrals EU is designed to handle both cross-border and domestic disputes simply and easily. The system is designed to accept disputes from the new EU mechanism. A "paper process" is being designed into the system.
1.1.6 Set out in your policies the grounds, if any, upon which you will refuse to deal with a dispute, despite being ‘competent’ to deal with a dispute of that type.
The grounds upon which disputes are rejected will be clearly disclosed in the program rules published on the NetNeutrals EU website. NetNeutrals EU may refuse to assist with a dispute in the event that the consumer has not attempted to contact the trader regarding the complaint. Other reasons include, the dispute is frivolous or vexatious, the dispute is being or has been previously, considered by another certified ADR provider or by a court, the value falls below a reasonable monetary threshold (as determined by the trader and NetNeutrals EU when the service agreement is set up), the consumer has not submitted a complaint within the specified period of time (as determined by the trader and NetNeutrals EU when the service agreement is set up - not less than 12 months from the date the consumer and trader were unable to reach a satisfactory resolution to the initial complaint. Additionally, NetNeutrals EU would refuse a case that would seriously impair the effective operation of the ADR process. This would include claims that would monopolize NetNeutrals EU resources, be in direct conflict with NetNeutrals EU program rules, or be considered a conflict of interest (in which impartiality would be in question). As an example of a case that was refused, a consumer recently applied to the CAP-RV program. The case had been previously decided about one year ago and the consumer accepted the decision, which was partially in his favor. The consumer applied for additional compensation, which is not allowed by the program rules. The case was declared ineligible since there was no new claim. The previous decision was a final adjudication of the dispute.
1.1.7 Where, in accordance with your policy on refusals you are unable to consider a dispute submitted to you, that you provide both parties with a reasoned explanation of the grounds for not considering the dispute within three weeks of receiving the ‘complaint file’; unless you have been misled by one of the parties into considering a dispute.
Both parties are informed immediately following the initial eligibility review if a dispute is rejected as ineligible. Written notice is sent by the method the request was made (either electronically or by post). Eligibility reviews are done within the first two days of receiving a claim. Therefore, notification of ineligibility will be sent within one week. NetNeutrals EU reserves the right to reject a dispute at any time in the process should it come to light that a party deliberately misled the program.
1.1.8 Your policy on refusals, particularly in relation to the level of any monetary threshold you set, shall not unreasonably prevent or restrict consumers’ access to your ADR procedure.
Monetary and time limits for eligibility are set in collaboration with participating traders and/or trade organization. NetNeutrals EU anticipates a requirement of £100, unless the trader agrees to participate in lower value claims. This way a reasonable limit can be set for various types of disputes. This ensures fairness and access to services for consumers.
2. Expertise, Experience, & Impartiality
2.1 People ‘ADR Officials’
2.1.1 That you ensure each ‘ADR official’ possesses a general understanding of the law and the necessary knowledge and skills in the field of out of court or judicial resolution of consumer disputes, to be able to carry out their functions competently.
NetNeutrals EU will draw upon its 25 years of experience in training ADR officials in designing and implementing its training process for EU ADR officials. ADR officials are vetted for experience in the sector in which they will operate and for dispute resolution experience. Training is primarily conducted online or via Skype (in-person training may be done on occasion). All ADR officials must pass a post-training exam that is kept on file by the program in order to be appointed. Refresher training will be conducted at regular intervals to ensure skills are up to date.
2.1.2 That you ensure each ‘ADR official’ is appointed for a term of office of sufficient duration to ensure the independence of their actions and that they cannot be relieved of their duties without just cause.
ADR officials are contract employees. Contracts are for terms of no less than one year. If an official must be removed from service before the end of their term of office, the reason will be recorded and kept on file by NetNeutrals EU administration. A sample contract for ADR officials working on the eBay Independent Feedback Review program is attached.
2.1.3 That you ensure no ‘ADR official’ discharges their duties in a way that is biased to either party of the dispute, or their representatives.
Correspondence and outcome of disputes are monitored and periodically reviewed by the program to ensure that ADR officials comply with program principles of neutrality and fairness. Consumers and traders can submit complaints to the program if they believe that an ADR official discharged their duties in a biased manner. Such complaints will be immediately reviewed by program administration and promptly addressed. After the case is closed NetNeutrals EU surveys the parties to to gather information about the handling of the dispute. Several questions ask the parties to report on their opinions about the ADR official's performance.
2.1.4 That each ‘ADR official’ is remunerated in a way that is not linked to the outcome of the dispute resolution procedure.
ADR officials are paid on a per case basis at a flat rate. Additional reimbursements for expenses (such as travel or lodging) can be available if required. No payment is added or withheld based on outcome of a dispute.
2.1.5 That you ensure each ‘ADR official’, without undue delay, discloses to you any circumstances that may, or may be seen to, affect their independence and impartiality or give rise to a conflict of interest with any party to the dispute they are asked to resolve. The obligation to disclose such circumstances shall be a continuing obligation throughout the dispute resolution procedure.
ADR officials are required to recuse themselves should they be unable to maintain neutrality (for example they have a financial stake in a trading company or they personally know one of the parties) or should there be the appearance of bias on the part of the ADR official. Failure to comply with this rule is grounds for immediate dismissal from the program. All situations in which an official recused themselves or were dismissed for failure to do so are recorded by NetNeutrals EU administration.
2.1.6 That where ADR officials are employed or remunerated exclusively by a professional organisation or business association, a ring fenced budget is available.
NetNeutrals EU is a fully independent entity that contracts with traders and professional organizations. Traders make payment for services in advance of dispute outcomes being disclosed to the parties. As such, payment is fully independent of outcome.
2.1.7 That you engage an equal number of representatives of consumer interests and trader interests where, the operating model of your dispute resolution procedure is to have a group of more than one person (a collegial body) with representatives of both professional organisations or business associations and consumer organisations.
Not Applicable
2.1.8 That ADR services for domestic and cross border disputes are not provided at all if an ADR official responsible for a dispute is either employed or remunerated directly by a trader who is party to the dispute.
Per 2.1.5, ADR officials are required to recuse themselves should they be unable to maintain neutrality (for example they have a financial stake in a trading company or they personally know one of the parties) or should there be the appearance of bias on the part of the ADR official. Failure to comply with this rule is grounds for immediate dismissal from the program. All situations in which an official recused themselves or were dismissed for failure to do so are recorded by NetNeutrals EU administration.
2.2 Procedures
2.2.1 You have a procedure in place to replace an ADR official who declares they have a conflict of interest, in relation to a dispute with another ADR official.
In the event that an ADR official has recused him or herself or must be replaced for any reason, an alternate ADR official will be appointed to handle the dispute. This process is recorded and can be repeated until a satisfactory official is found. As an example, one week prior to the hearing, a residential construction ADR official was sent the list of people who would be at the hearing. He notified the Administration office that he was acquainted with one of the witnesses the consumer intended to have present information at the hearing. The ADR official was replaced, and the hearing was rescheduled for a later date.
2.2.2 If an ADR official who declares a conflict of interest cannot be replaced by another ADR official, then the ADR official must stop conducting the dispute resolution procedure. Your procedure must then go on to require; where possible, that a proposal is put to the parties that they submit their dispute to another ADR organisation competent to deal with it; where this is not possible, a declaration to the parties as to the circumstances of the conflict of interest declared by the ADR official, that they have a right to object to that official continuing to handle their dispute and that the organisation can only continue to deal with the dispute if no party objects.
In the event that no suitable ADR official can be found, the program will recommend to the parties in a durable medium that an alternate ADR program be used in the resolution in this matter. Because NetNeutrals EU's process is primarily online, location will not likely be a factor in the appointment of an alternative official. Therefore, it is unlikely that an alternate official cannot be found. If necessary, the program will recommend a certified mechanism that is equipped to handle the specific type of dispute. Such instances will be included in the reporting to TSI.
3. Transparency
3.1 To the Public
3.1.1 Make publicly available on your website, or on a durable medium upon request, specific information about your procedures and organisation, in a clear and easily understandable way.
Information available on the website: 1) contact information, including postal address and email address; 2) a statement that the program is listed by TSI as a certified ADR organisation (after certification is complete); 3) Information on ADR officials including title, qualifications and experience, method of appointment, length of contract (names may be disclosed after safety considerations are considered and reviewed); 4) Names of affiliated organizations; 5) A complete list of types of disputes handled by the program and the programs competencies; 6) Complete program description, including FAQs and explanatory diagrams, charts and videos; 7) A clear descriptions of the reasons a case might be refused; 8) List of languages in which complaints can be submitted; 9) List of languages in which the resolution process can be conducted; 10) The dispute resolution principles applied/considered by the program and its officials; 11) A complete list of requirements in order to initiate a case; 12) Process for withdrawing from a claim; 13) the cost to parties; 13) average length of ADR procedure, including a breakdown by type of case; 14) the legal effect of the outcome of the disputes; 15) ways in which the process can be conducted; 16) publication of annual and bi-annual activity reports as submitted to TSI.
3.1.2 Make publicly available on your website, or on a durable medium upon request, the annual activity report that you are required to supply to TSI.
This will be readily available on the website and can be provided in print form or electronically upon request. This practice is currently required by the State of California for residential construction cases and can be viewed on our website at www.demarsassociates.com in the CAP-Home tab.
3.1.3 Are not formed as an ADR organisation simply to deal with one domestic or cross border dispute.
NetNeutrals EU is formed to deal with multiple disputes in a timely and efficient manner. It is not formed to deal with a single dispute.
4. Effectiveness
4.1 To the Dispute Parties
4.1.1 The ADR procedure you operate is available and is easily accessible to the parties irrespective of where they are located, both by electronic and non-electronic means.
The online forum can be accessed from anywhere in the world at any time of day. Administrators are available to accept non-electronic submissions and enquiries.
4.1.2 The parties must have access to the ADR procedure without being obliged to obtain independent advice or be represented or assisted by a third party, although they may choose to do so.
The process is designed to be simple and effective without the additional cost and time burden of hiring outside counsel or other type of assitance. This will be clearly disclosed on the website in the program description and FAQ sections. Clear instructions are given at each stage of the process so as to be understandable to all. However, nothing precludes either party from obtaining outside advise or interpretation services, at their own expense, throughout the process.
4.1.3 Your ADR procedure needs to be free of charge or available at a nominal fee for consumers.
The NetNeutral EU process is free to consumers. In the event that an in-person dispute resolution session is requested by the consumer, a nominal fee may be charged for this service. This fee, if necessary, will be fully disclosed in advance.
4.1.4 The parties to the dispute must be notified as soon as you have received all the documents containing the relevant information relating to the dispute, constituting a ‘complete complaint file’.
Once a complaint is filed with the program either through the website or by post, the online system notifies the trader involved. The information is uploaded to the forum in the case of post submittal, in the case of online submittal the consumer enters the required information before a case is opened. Both parties then have access to the confidential online forum to upload documents and communicate with one another. Once both parties have submitted all the information, a complaint is considered complete. At this point an ADR official can be invited into the case in order to facilitate resolution. Case Coordinators work with consumers and traders to assemble a complete complaint when claims are filed by non-electronic means.
4.1.5 The outcome of the ADR procedure must be notified to the parties, within a period of 90 days from the date on which you receive the ‘complete complaint file’. However, in the case of ‘highly complex’ disputes, you may, at your own discretion, extend the 90 calendar days' time period. You will need to inform the parties of the extension and how long it will be.
The vast majority of claims, even in-person dispute resolution proceedings, can reach resolution within 90 days from the date the complete complaint file is assembled. Should an extension be required, all parties will be notified in a timely manner. Length of time to resolution is always tracked and extensions are documented and reviewed. NetNeutrals.com has more than ten years of experience in administering a process for eBay that settles cases in seven days. Automotive cases are required by US state and federal regulations to be completed in 40 days. The Company has more than 25 years' experience in meeting deadlines and operating in compliance with regulations.
5. Fairness
5.1 To the Parties
5.1.1 To ensure the parties have the possibility, within a reasonable period of time, of expressing their points of view regarding the dispute.
Posts to the NetNeutrals EU online forum are immediately visible to the other party and the ADR official assigned to the case. As such, the process is speedy and efficient. One week is generally considered to be a reasonable time for parties to enter their documentation and initial statements about the facts. The faster the process operates, the higher the level of customer satisfaction. Timelines are provided on the website to ensure that all parties understand the time involved in the process.
5.1.2 To provide a party, upon request and within a reasonable time, with the arguments, evidence, documents and facts put forward by the other party to the dispute. This includes any statements made and opinions given by experts. When provided with this information you will need to allow the party a reasonable time to comment on the information and documents.
The NetNeutrals EU forum allows both parties to see information submitted and parties can be notified when new information is submitted. In general, one week is considered an acceptable time to upload necessary information to the forum and to respond to statements made by the other party, but we anticipate the parties may need more time. We will work closely with traders to determine a reasonable time. In the case of one or both parties submitting information via post, the time will be extended for up to one month to allow for adequate time for postal delivery.
5.1.3 To inform the parties to the dispute that they are not obliged to retain a lawyer or a legal advisor, but they may seek independent advice or be represented or assisted by a third party at any stage of the procedure.
This information will be available on the website in the program description and the FAQ section. The parties will be reminded at each progression stage of the dispute resolution as well.
5.1.4 To notify the parties of the outcome of the ADR procedure on a durable medium. As well as the outcome to provide a statement of the ‘grounds’ on which the outcome is based.
The outcome of disputes will be promptly disclosed on the online forum. Parties that participate via post will be informed both through the online forum and in by post as to the outcome of their claim.
5.1.5 Where the ADR dispute procedure is one that aims to resolve the dispute by proposing a solution, you will need to ensure the parties have the possibility of withdrawing from the procedure at any stage if they are dissatisfied with the performance or the operation of the ADR dispute procedure. You need to ensure parties are informed of that right before the procedure commences.
This information will be available on the website in the program description and the FAQ section. The parties will be reminded at each progression stage of the dispute resolution as well. The system will email the parties and notice of the right to withdraw will also be included in the forum.
5.1.6 The parties before agreeing or following a proposed solution, are informed that:
(i) they have the choice as to whether or not to agree to, or follow the proposed solution; (ii) participation in the procedure does not prevent the possibility of seeking redress through court proceedings; (iii) the proposed solution may be different from an outcome determined by a court applying legal rules; and (iv) the legal effect of agreeing to, or following the proposed solution.
This information will be available on the website in the program description and the FAQ section. The parties will be reminded at each progression stage of the dispute resolution as well. Consumers will be advised that they may either accept or reject an offer from the trader. In the event the consumer accepts an offer, the program will email about 30 days later to inquire as to whether or not the trader has fulfilled the offer.
5.1.7 The parties, before expressing their consent to a proposed solution or amicable agreement, are allowed a reasonable period to reflect.
In the event a solution is proposed, the parties are allowed a reasonable period of time from the date of notification of the proposal in order to reflect on proposal, if applicable. For example, the automotive dispute process offers the consumer 30 days to decide whether to accept or reject.
6. Legality
6.1 Same Law Disputes
6.1.1 To ensure that if the ADR procedure aims to impose a solution on the consumer, and there is no conflict of laws, the solution imposed does not result in the consumer being deprived of the protection those laws allow for. That is, unless those laws are allowed to dis-apply, by agreement of the parties.
6.2 Conflicting Law Disputes
6.2.1 To ensure that if the ADR dispute resolution procedure aims to impose a solution on the consumer, and there is a conflict of laws, the solution imposed does not result in the consumer being deprived of the protection those laws allow for by virtue of the European country the consumer is ‘habitually resident’. That is, unless those laws are allowed to dis-apply, by agreement of the parties.