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How the ODR Platform Works - Decision Making Rules

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EU Platform – Decision Maker

Introduction

ProMediate is introducing a decision making ADR process, Decision Maker, for low value consumer complaints (£10,000) submitted through the EU online dispute resolution platform.  The terms and conditions of the scheme are as follows:

The same principles as ProMediate’s Click2Resolve mediation scheme will apply as to ADR Officials and Grounds for Refusal, dealing with conflicts of interest etc.

ProMediate will negotiate between the parties via email only, failing which the complaint will exit the scheme and be transferred to ProMediate’s other scheme for consumer disputes.

Once notified of the complaint by the ODR platform, ProMediate will contact the parties within 7 calendar days and negotiate by email. If resolution is not achieved within 28 days, However, a non binding recommedation or decision will be issued by the ADR Official and the consumer and business will have 5 calendar days to agree to the decision. This will be a neutral evaluation ADR process and will be free to the consumer. The decision will only be binding on the parties after it is issued if both of them agree subject to it within 5 calendar days.

By making payment of ProMediate’s charges, the business agrees to the following terms and conditions for resolving the dispute.

  1. DEFINITIONS
  1. Services. “Services” means (i) the services related to the resolution of disputes among buyers and sellers using the EU online platform, including but not limited to selecting neutrals and issuing decisions;
  2. End-User. “End-User” means buyers and sellers that may or has been authorized to use a Service.
  3. Neutral. “Neutral” means an ADR Official included in the list of neutrals for resolving disputes maintained by the ODR Provider.
  4. “Rules” mean the ProMediate online dispute resolution rules which regulate the procedure for resolving disputes via Services, including all annexes attached to the Rules. The Rules are contained in Annex A.
  5. Approved Seller. “Approved Seller” means a seller accepted by the ODR Provider as a seller for which cases (i.e. cases where the seller is a party) filed via the EU Platform and the ODR Provider will issue decisions under the Rules.
  6. ODR fee. “ODR fee” means a monetary charge payable to the ODR Provider for issuing decisions under the Rules.

 

  1. ODR PROVIDER’S OBLIGATIONS

ProMediate will administer and resolve cases filed with the ODR Provider via the EU Platform by End-Users – sellers via Services in accordance with the Rules and its annexes, unless the parties agree to use ProMediate’s mediation service.

Obligation to resolve all the disputes. ODR Provider will not reject to administer and resolve any dispute filed with the ODR Provider against End-Users – sellers which designated the ODR Provider as the online dispute resolution institution for resolving their cases under the Rules.

However, ODR Provider may reject disputes in accordance with the ProMediate Grounds for Refusal.

ODR Fee. ODR Provider is free to set its ODR fees according to its sole discretion except that the current fee for dealing with cases will be £40 including VAT.

No ODR fees for cases where Grounds of Refusal apply – With reference to Art. 4(4) of the Rules, the ODR provider i) cannot and will not charge any ODR fees for cases which are rejected in accordance with the grounds of refusal.

End-User Data. ODR Provider undertakes to protect all customer data which it processes in accordance with mandatory local regulations

Complaints made via the EU Platform can be made by Post – as required by the ADR Regulations in the same way as with ProMediate’s mediation scheme.

The parties to a dispute are not obliged to obtain independent advice or be represented or assisted by a third party although they may choose to do so;

The system is free to consumers.

Annex A:

ProMediate Online dispute resolution rules (Rules)

The Rules are intended for use in the context of low-value, high-volume transactions involving the sale of goods and performance of services, up to a value of £10,000. Parties under these Rules include customers, retailers and/or service providers.

Article 1: Scope of application 

The Rules are intended for use in an online dispute resolution framework. The following documents form an integral part of the Rules:

(a)        Grounds for Refusal set out below defining the scope of permissible claims, defences and remedies; and

(b)       Guidelines and minimum requirements for online dispute resolution providers (ODR providers) as specified in: United Nations Commission on International Trade Law Working Group III (Online Dispute Resolution): Proposal on principles applicable to Online Dispute Resolution providers and neutrals, Twenty-fifth session New York, 21-25 May 2012, 6 pages.

Article 2: Appointment of neutral

In the event the complainant and respondent do not settle their dispute during the negotiation stage, the ODR provider through the EU ODR platform shall appoint a single neutral by selection from a list of qualified neutrals maintained by ProMediate.

The neutral shall declare his or her independence and shall disclose to ProMediate any circumstances arising at any time during the ODR proceedings likely to give rise to justifiable doubts as to his or her impartiality or independence. Based on the information disclosed, ProMediate may at its discretion, not appoint the neutral. Once the neutral is appointed, ProMediate shall notify the parties of such appointment.

Either party may object to the neutral’s appointment without giving reasons therefore.

Where a party objects to the appointment of a neutral, that neutral shall be automatically disqualified and another appointed in his or her place by ProMediate.

If the neutral has to be replaced during the course of ODR proceedings, ProMediate through the ODR platform will appoint a neutral to replace him or her from the list of qualified neutrals and will inform the parties without delay. The ODR proceedings shall resume at the stage where the neutral that was replaced ceased to perform his or her functions.

In the event that an ADR official declares or is discovered to have a conflict of interest in relation to a domestic dispute or cross-border dispute—

  • where possible, the ADR official is replaced by another ADR official to handle the particular dispute;
  • if the ADR official cannot be replaced by another ADR official—
  • the ADR official must refrain from conducting the alternative dispute resolution procedure, and
  • ProMediate must, where possible, propose to the parties that they submit the dispute to another ADR entity which is competent to deal with it;
  • if the dispute cannot be transferred to another ADR entity, ProMediate—
  • must inform the parties to the dispute of the circumstances of the conflict of interest,
  • must inform the parties to the dispute that they have the right to object to the conflicted person continuing to handle the dispute, and
  • can only continue to deal with the dispute if no party to the dispute objects.

Article 3: Grounds of Refusal – The Grounds of Refusal are as follows:

  1. Prior to submitting the complaint to the body, the consumer has not attempted to contact the trader concerned in order to discuss the consumer’s complaint and sought, as a first step, to resolve the matter directly with the trader;
  2. The dispute is frivolous or vexatious;
  3. The dispute is being, or has been previously, considered by another ADR entity or by a court;
  4. The value of the claim falls below or above the monetary thresholds set by ProMediate which will be £10,000 for complaints submitted through the EU Platform.
  5. the consumer has not submitted the complaint to ProMediate through the EU Platform within 12 months from the date upon which the trader has given notice to the consumer that the trader is unable to resolve the complaint with the consumer.
  6. dealing with such a type of dispute would seriously impair the effective operation of the body.

Article 4: Powers and responsibilities of neutral

Subject to the Rules and any applicable legal obligations, the neutral may conduct the ODR proceedings in such manner as he or she considers appropriate.

The neutral, in exercising his or her functions under the Rules, shall conduct the ODR proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the dispute. In doing so, the neutral shall remain at all times wholly independent and impartial and shall treat both parties equally. The neutral shall not engage in any communication with one party without copying the other party at the same time.

The neutral shall determine the relevance of materials filed by the parties and any communications made by them. The ODR proceedings shall be conducted on the basis of these materials and communications only unless the neutral decides otherwise.

The neutral cannot examine the complaint if the Grounds for Refusal apply.

In the event that a party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the neutral, the neutral shall proceed to a decision on the complaint. If a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the neutral, the neutral shall draw such inferences therefrom as it considers appropriate. 

Article 5: Neutral resolution

The neutral shall render a non binding decision without delay and in any event within 28 calendar days after his or her appointment. ProMediate shall communicate the decision to the parties through the EU Platform.

Through communications via the EU Platform, ProMediate will:

ensure that during the alternative dispute resolution procedure the parties may, within a reasonable period of time, express their points of view;

provide a party to a dispute within a reasonable period of time, upon request, with the arguments, evidence, documents and facts put forward by the other party to the dispute, including a statement made, or opinion given, by an expert;

ensure that the parties may, within a reasonable period of time, comment on the information and documents provided;

inform the parties that they are not obliged to retain a legal advisor, but that they may seek independent advice or be represented or assisted by a third party at any stage of the alternative dispute resolution procedure;

notify the parties of the outcome of the alternative dispute resolution procedure on a durable medium and give the parties a statement of the grounds on which the outcome is based.

ensure that the parties have the possibility of withdrawing from the alternative dispute resolution procedure at any stage if they are dissatisfied with the performance or operation of the alternative dispute resolution procedure;

before the alternative dispute resolution procedure commences, are informed of their right to withdraw from the alternative dispute resolution procedure at any stage;

are informed, before the proposed solution is issued—

that they have a choice as to whether or not to agree to, or follow, the proposed solution;

that their participation in the alternative dispute resolution procedure does not preclude the possibility of them seeking redress through court proceedings;

that the proposed solution may be different from an outcome determined by a court applying legal rules; and

of the legal effect of agreeing to, or following the proposed solution;

before expressing their consent to a proposed solution, are allowed a reasonable period of time to reflect.

In all cases, the neutral shall decide taking into consideration any relevant facts and circumstances including any alleged rights claimed by the parties.

The decision shall indicate the date when it was made and brief grounds for the decision. The decision may be made public with the consent of all parties or where and to the extent disclosure is required of a party by legal duty, to protect or pursue a legal right or in relation to legal proceedings before a court or other competent authority.

The decision shall be binding on the parties as a contractual obligation if the parties agree to it within 5 calendar days.  If the parties do not agree, any such refusal shall not affect the validity of the payment of the ODR provider’s fee .  If the parties do agree, the decision will become valid and binding on the parties as of the date the decision is issued.

Parties still have the right to bring a lawsuit over the same matter until after the agreement to the decision. Neither party shall provide to the court information generated during negotiation or ODR proceedings under these Rules without the written consent of the other party.

The parties shall carry out the decision without delay. 

Article 6: Exclusion of liability

Save for intentional wrongdoing or gross negligence, neither the neutral nor ProMediate shall be liable to the parties for any act or omission in connection with any ODR proceedings under the Rules.

 

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ProMediate is certified by CTSI to provide mediation services for consumer/business disputes in the UK. The charges that ProMediate is authorised to raise for each dispute dealt with are as follows:

Cost to businesses:

Value of Goods or Services

Up to £1,000                                         – £50 plus VAT

– £2,500                                                  – £75 plus VAT

– £5,000                                                  – £100 plus VAT

– £7,500                                                   – £125 plus VAT

– £10,000                                                 – £150 plus VAT

Payment can be made here for individual disputes:

Business Membership fee £100 plus VAT – sign up here……

Cost to Consumers:

Value of Goods or Services

Up to £1,000                                          – £10 plus VAT

£2,500                                                     – £25 plus VAT

£5,000                                                      – £50 plus VAT

£7,500                                                       – £75 plus VAT

£10,000                                                    – £100 plus VAT

The above charges are based upon 1 hour of mediator time. Disputes above this value can exit the scheme and be dealt with by ProMediate’s general mediation service.

It is a term of the Click2Resolve scheme that the business and consumer must consent to use the service, before instructing us.

Payment by Consumers can be made here……

Mediation Set up Service

If you contact us without first getting the other person or business to agree to use our service, we will contact them to try to obtain their agreement.

In those circumstances we do charge a set up fee for this service. It is sometimes possible to resolve your dispute informally after one or two calls without even booking a mediation appointment!

When we receive an initial enquiry we crack on immediately trying to make contact with the other side in the dispute, emailing info, leaving messages on the telephone and even text messages. Our working hours are never 9-5 and we will often make contact at a time that meets the needs of our clients, evenings and weekends included.

Sometimes one side requires key information before they will agree to mediate. We will often liaise with all concerned to make sure this is shared. Once contact is made there will be further to-ing and fro-ing to set up the appointment, documents sent out and making sure everyone is comfortable with the process.

We charge the following fees for contacting the other party in this way:

Value of Goods or services:

Up to £1,000 – £10 plus VAT

– £2,500       – £25 plus VAT

–  £2,500 upwards – £50 plus VAT

If you have already discussed your case with one of our mediators and need to pay your set up fee click below to pay by PayPal (if you need an alternative payment method please contact our office on 01928734630). (click below to make a payment)