1. ODR moves in the courts and for consumers Lessons to be Learnt
Graham Ross
Conference on Online Dispute Resolution
University of Victoria, Melbourne , 22nd November 2018

3. Are We Here Yet?

4. TIER 1 – Evaluation
TIER 2 – Facilitation
TIER 3 - Determination

6. _______________________________
Lesson 1:
Lets’ Not Start At The Beginning t
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_______________________________
training in ODR since 2007

7. Let’s Not Build In-House _______________________________
Lesson 2:
Let’s Not Build In-House
___________
“Sources say the programme has been overly focused on building the platform in house, rather than buying off-the-shelf software. “
From an article in The Register by Paul Magrath March 2017
_______________________________
training in ODR since 2007

8. _______________________________
Lesson 3:
Beware The Blank Box
___________
_______________________________
training in ODR since 2007

9. Despite court encouragement to ADR “the system as whole is not working”.
“it is still not familiar to the public and culturally normal.”
“if ODR techniques become woven into the design of the Court system then the debate about whether or not to compel ADR may simply become obsolete.”
“the more exciting recent developments around data analytics and digital intelligence are beginning to identify how ODR can also improve quality of outcomes.”
“(an online logical decision tree) might move beyond lawyer-instigated questions and stray into mediator-raised questions”

10. _______________________________
The 2 EU Laws That Together Require Millions of Companies to Promote ADR and ODR…but has failed
___________
* The European Union Directive on Alternative Dispute Resolution for Consumer Disputes (2013/11/EU) and
* The European Union Regulation on Online Dispute Resolution for Consumer Disputes (542/2013)
_______________________________
training in ODR since 2007

11. The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015
19 (2) Where a trader has exhausted its internal complaint handling procedure when considering a complaint from a consumer relating to a sales contract or a service contract, the trader must inform the consumer, on a durable medium—
(a) that the trader cannot settle the complaint with the consumer;
(b) of the name and website address of an ADR entity which would be competent to deal with the complaint, should the consumer wish to use alternative dispute resolution; and
(c) whether the trader is obliged, or prepared, to submit to an alternative dispute resolution procedure operated by that ADR entity.

12. Regulation of the European Parliament and of the
Council on Online Dispute Resolution for Consumer Disputes
542/2013
Article 14
1. Traders established within the Union engaging in online sales or service contracts, and online marketplaces established within the Union, shall provide on their websites an electronic link to the ODR platform. That link shall be easily accessible for consumers.

13. EU Have Only Done Half The Job ______________________
By not distinguishing/encouraging mediation over ombudsmen driven arbitration
By making participation in ADR non –binding on traders and thus decrease not increase trust (if buyers see EU Portal link pre-purchase, they will feel trust abused when dispute arises and trader refuses to participate )
By creating a ‘race to the bottom‘ on fees (rule that consumers only pay nominal ignores high value cases)
And by regulators not informing or enforcing
__________
______________________
training in ODR since 2007

15. Study Looked At Wrong Target ______________________
Fundamental objective of legislation to increase confidence in the Single Market and thus sales cross-border.
Hence a home page link to EU’s ODR Portal would increase consumer confidence pre-sale.
Yet the Report assumed purchase already made and dispute already arisen and thus T&C/Returns Policy pages OK to house the link – but these not read pre-dispute so wouldn’t affect purchase decisions.
___________
______________________
training in ODR since 2007

18. Numbers Show the Law is Not Working ______________________
3,714 claims submitted through the ODR Portal in the month of February 2017 (last month of the study)
As the population of EU is 500m, 3,714 equates to approx. only 1 person out of every 135,000 EU citizens submitting a complaint at any time during that month.
Lets try to visualize that number……….
___________
______________________
training in ODR since 2007

19. 13,500 Sing Hey Jude

20. So here’s what 135,000 look like.
Would you say that a system designed to encourage consumers to use a service to pursue a complaint succeeded in being used throughout a whole month by only 1 person out of 135,000 was working?

23. ODR moves in the courts and for consumers Lessons to be Learnt
Graham Ross
Conference on Online Dispute Resolution
University of Victoria, Melbourne , 22nd November 2018