ProMediate - Legal Complaints Service - Guidance

Peter Causton – Professional Indemnity Specialist Mediator

Click2Mediate Claims Against Lawyers and Professionals – ProMediate Certified ADR scheme – Legal Complaints Service

GUIDANCE

What is Click2Mediate? Click2Mediate is an independent alternative dispute resolution service, which is the trading name of ProMediate (UK) Limited, which has been set up to resolve disputes between lawyers and clients in the UK, online and/or by telephone.

The mediator assigned to deal with the case will be fully qualified lawyer with experience in dealing with professional negligence disputes.

As well as putting forward details of the Legal Ombudsman, which is a statutory requirement, solicitors also have to put forward an ADR Entity to consumers under the ADR Directive.  ProMediate has been certified by CTSI to deal with complaints about lawyers, under the ADR Directive.

The obligation to provide information to clients comes into effect from 1 October 2015, when at the end of the internal complaints process, the dispute has not been resolved.

There are advantages to offering mediation to clients before a complaint is made to the Ombudsman, not least because the Ombudsman may not deal with the claim if it falls outside their remit or may take into account the steps taken by the professional to resolve matters. For example, the Legal Ombudsman:

• will not consider claims which would be better dealt with in the Courts, such as negligence claims;

• will consider the steps taken by the lawyer to resolve the complaint when considering whether to charge the £400 case fee;

• is limited to payment of £50,000 compensation;

• will publicise the existence of the complaint in its statistics.

ProMediate (UK) Limited is registered with the Civil Mediation Council and can provide a quicker path to resolving a professional negligence claim or complaint.

We would also say that it would be confusing to clients potentially to offer them an Ombudsman service as opposed to mediation, as well as informing them about the Legal Ombudsman.

What is the cost to businesses?

There is a membership fee, which varies according to the requirements of the firm.

Basic membership is £100 plus VAT in return for which ProMediate will provide suggested wording to insert into the business’ terms and conditions and regular newsletters.

Alternatively, larger businesses can agree an all inclusive membership fee to include a number of mediations.

The Click2Mediate scheme is designed to save professional businesses and consumers the cost of bringing Court proceedings, which can be expensive and the business may be able to agree confidentiality and to avoid a complaint being made by offering mediation.

Who makes the decision in relation to my dispute?

Click2Mediate does not make a decision about your dispute but conciliates and mediates between the business and client in an attempt to help you to reach a settlement. The process is entirely voluntary and non-binding until any agreement is reached between you. However, at the end of the process, if requested, Click2Mediate will issue a non-binding case summary, containing a record of any offers made and a proposed solution, to assist the parties. After the client has submitted their complaint form and any supporting documents online, we will contact you by telephone to try to resolve the case. A mediator will be allocated to the case, after first checking that they have no conflict of interest. The complaint will be dealt with by a professional, fully trained Click2Mediate mediator who will be completely independent and impartial as well as being knowledgeable about professional indemnity law, the Consumer Rights Act 2015 and other consumer legislation.

The Click2Mediate mediator will act as a go-between between you and the client, discuss the details of the complaint and see whether there is any scope for agreement between you. All communications between you, the client and the mediator during the process will be “without prejudice” (that is, that they cannot be referred to elsewhere, for instance in court proceedings) and are non-binding. You are free at any stage to terminate the mediation process.

How will the mediator assist in resolving the case?

The mediator will negotiate between the parties to find an amicable solution by way of mediation, by telephone or online videoconferencing if the parties agree for a number of inclusive hours set out below. If, at the end of the 28 days, no solution has been agreed, the mediator will consider the information you provided in your response document along with any supporting evidence you submitted. They will also consider the evidence submitted by the client in their application, all relevant law and will consider what is most fair and reasonable in light of all of the circumstances before them when proposing a solution.

Can I talk directly to the mediator?

Yes, the mediator will email or telephone you after you have submitted your response to the claim. During mediation the mediator is available to discuss the matter further by telephone (without the client hearing what you say) or will conduct the mediation online by video conference if the parties agree.

How will the mediator assist in resolving the case?

The mediator will email or telephone you after you have submitted your response form and supporting documents. During the mediation, the mediator is available to discuss the matter further by telephone or video conferencing (without the client hearing what you say).

When will the dispute be resolved?

Click2Mediate will deal with your dispute within 28 days of receiving the client’s completed application. If the claim has not settled, to assist the parties, the mediator will issue a case summary within 28 days with a proposed solution, if requested.

Do I have to pay to use the scheme?

Clients do not pay fee to use Click2Mediate’s services, as such disputes are dealt with free of charge to the consumer by the Ombudsman. The Business pays a fee to Click2Mediate based upon the value of the dispute, unless it has agreed an all-inclusive package, as set out below.

Can I recover the costs of preparing my Click2Mediate case?

No, you must pay any costs you incur in preparing and submitting your case to Click2Mediate, which include any incidental or third party costs. If, for example, you decide to take legal advice about making an application you must pay for that yourself.

Do I need a lawyer?

No, you do not need a lawyer but you can choose to use one if you wish, but you will have to pay all of the legal (or other professional) costs you incur in making your application yourself.

Referring a Dispute to Click2Mediate

The client or the business refers the dispute to Click2Mediate after they have been notified that the dispute cannot be resolved and as to your nomination of Click2Mediate. An application to Click2Mediate can be made after:

1. The client has made a complaint and

2. you have told the customer that you wish to resolve the matter through mediation.

It is not necessary to have come to the end of the internal complaints handling process.

What should I consider before responding to a client’s application?

The client should have read their guidance notes carefully before making an application to ensure their claim can be dealt with by Click2Mediate.

You should consider the contents of the client’s complaint form and supporting documents, how you will respond and whether you are prepared to compromise.

What kind of disputes can Click2Mediate deal with?

We can deal with disputes related to any client issues relating to the provision of professional services which have been the subject of a complaint to the professional business. Click2Mediate will assess the client’s application against certain criteria (see below),and if the dispute does not fall within the scope of the scheme, they will be told by Click2Mediate and their application will not be referred to a mediator. The business will also have the opportunity to object to the acceptance of the application if it considers that the dispute is outside the scope of the scheme. In such circumstances Click2Mediate will rule on the validity of the application and the decision of Click2Mediate will be final.

What kind of disputes cannot be dealt with by Click2Mediate?

If any of the following apply then Click2Mediate cannot deal with the complaint:

• if prior to submitting the complaint, the client has not attempted to contact the business concerned in order to discuss the complaint and sought, as a first step, to resolve the matter directly with the business.

• any dispute or disputes that are and considered by Click2Mediate to be frivolous and/or vexatious.

• the dispute is being or has been previously considered by another ADR entity (such as a different mediator or Ombudsman) or by a Court.

• the value of the claim is worth more £50,000 (it can then be dealt with outside the scheme).

The client should only apply if their dispute falls within the criteria of acceptable cases detailed above. If you consider that the dispute falls outside the scheme, you can contact Click2Mediate to check.

What is the maximum amount the customer is able to claim under Click2Mediate scheme?

The maximum claim amount is £50,000 per transaction. Disputes over this value can be dealt with by ProMediate outside the Click2Mediate scheme.

What does the customer put in their application? They will need to include the letter or email from the business telling them that they can apply to Click2Mediate. They should set out what the dispute is about in their application and provide any supporting documents. The business will then have an opportunity to explain their response to the claim in the Response Form and to provide any documents upon which they rely.

The Response Form should include details of:

·the business’ service which the dispute is about;

·the events leading to the complaint;

·the precise issues which are in dispute;

·the steps already taken to attempt to reach a resolution with the customer;

·the reasons for rejecting the complaint; ·proposals for resolving the claim;

· and any relevant supporting documents – remember it will help if you can provide evidence to support your response.

Click2Mediate has designed a response form that will take you through these requirements step by step.

Can Click2Mediate help me with my response?

Yes, the Click2Mediate Team is available to offer guidance about responding to an application. Click2Mediate is committed to providing appropriate accessibility for everyone it deals with. Click2Mediate will not, however, be able to tell you how to set out your response.

Settlements

The business made the client an offer before they made their application, can they still accept it? Yes, any offer or offers made by the business before the client made their application are open and they can accept them after they have made their application, unless the business has withdrawn the offer.

What if the business makes the customer an offer after they have made their application?

The client can accept any offer made by the business after they have made their application. This is called an agreed settlement.

Will Click2Mediate negotiate with the client for me?

Yes, Click2Mediate is an impartial, independent dispute resolution service; it will not act for either you or the client. However, negotiations will only take place during the mediation process and Click2Mediate cannot be asked to take extra steps outside the mediation process.

Mediation Settlement Agreements

What can Click2Mediate make the business do? Click2Mediate cannot make the business comply with any settlement agreement reached, but a settlement agreement will be binding on the parties (and is enforceable using other agencies). If requested, Click2Mediate will issue a non-binding case summary and suggestion for resolving the dispute. We can, if appropriate, suggest that the business provide or do any or all of the following:

• provide an explanation and/or an apology;

• provide replacement services;

• do something about the bill or bills;

• take some specified action;

• provide financial compensation

Remember that in all cases the mediator cannot order the business to pay the client or to take any action or provide any services. Compliance is voluntary.

What should I do when I make a proposal to the client or receive a proposal from the client?

You are free to take the matter further at any stage (before settlement). The client and business have 5 working days to tell Click2Mediate whether they accept any proposal (unless we agree a longer acceptance period). If both parties accept a proposal, it will be binding on the business and the client.

Service: What if I want to complain about Click2Mediate?

Click2Mediate has a set complaints procedure, details of which appear on the website. ProMediate (UK) Limited complies with the EU Code of Conduct for Mediators and is registered with the Civil Mediation Council as an ADR Provider.

Is Click2Mediate registered under the Data Protection Act 1998? Click2Mediate is operated by ProMediate (UK) Limited, which is registered under the Data Protection Act 1998.

Any Queries? – Contact Us Click2Mediate Brow Farm Top Road Frodsham WA6 6SP Tel: 0871 268 9828 Email: enquiries@promediate.co.uk

Schedule of Charges – Representing a discount on normal ProMediate charges.

1. Membership fee: Silver, gold and platinum packages at £100, £250 and £500 plus VAT per annum to include wording for inclusion of Click2Mediate in terms and conditions and regular newsletters as with the Click2Resolve consumer scheme.

2. Businesses may negotiate an all inclusive package to include a certain number of disputes to be dealt with per annum or alternatively, the cost per case is as follows:

NB – CURRENT AUTHORISED CHARGES ARE THE SAME AS CLICK2RESOLVE SCHEME. THE FOLLOWING CHARGES ARE UNDER REVIEW BY CTSI

Estimated value and time   Cost to Professional Business Member

1 hour £150 plus VAT

2 hours £300 plus VAT

3 hours £450 plus VAT

Additional Time Charged at £150 plus VAT per hour

Above this can be referred to ProMediate

Payment for individual mediations can be made here via Paypal:

The Following Membership Packages are available:

Silver – £100 plus VAT per annum

Regular ProMediate newsletter

Advice regarding compliance with the ADR Directive and ODR Regulations

Feedback regarding any complaints dealt with.

Gold – £250 plus VAT per annum

Plus – 1 free mediation of any value

Platinum – £500 plus VAT per annum

Plus – 2 free mediations of any value

Access to dedicated 24 hour ADR Helpline.

Lutetium/Rhodium- £1000 plus VAT per annum

All of the above plus half a day mediation and ADR training session – please contact us to discuss!