When taking a complaint further with a business under the ADR Directive, consumers could be forgiven for believing that their only options are to go to an ombudsman or the Court, such is the weight of publicity that has greeted the launch of new ombudsman services recently, often from interested parties.
Such is the clamour that people would be forgiven for being confused, with some publications talking about ombudsmen “mediating” disputes and stating that the black and white choice is Ombudsman or Court.
Consumers may be attracted by the allure of a free service, but we would suggest checking what service will actually be provided. They might also want to bear in mind that ombudsmen generally do charge the business for the free service once the consumer has signed up.
Businesses may also feel railroaded into using an ombudsman when they are contacted by them with an existing complaint. If they agree to submit to the ombudsman, they may then face an unwelcome decision which they will be bound by, unless the ombudsman is operating a mediation service.
People should understand that ‘ombudsman’ is not a legally protected term in the UK, unlike in some other countries, notably Ireland, New Zealand and Belgium.
The protection the term does have is that if you want to register a company at Companies House you have to get permission from the Secretary of State to use the title ‘ombudsman’. Before giving consent, BIS/Cabinet Office check with the Ombudsman Association whether the proposed ombudsman meets their criteria.
The Ombudsman Association attempts to safeguard the role and title of ombudsman in both the public and private sectors through their membership criteria, according recognition only to those who satisfy that criteria (which can be viewed in schedule 1 of the Association’s rules).
Before using an Ombudsman it is worthwhile checking whether they comply with the Association’s rules. It is also suggested that you should find out how much time the ombudsman will spend on the complaint and at what level will it be dealt with (by someone with some qualifications or more inexperienced) as well as what method of dispute resolution will be used. – mediation or binding decision.
In terms of the ADR Directive, it is not clear what, if any, checks are carried out as to, for example, whether any directors of the ADR bodies, including Ombudsmen and mediation service providers, have a criminal record, for example, or are fit and proper persons to operate a dispute resolution service.
It remains to be seen what the quality of some ADR providers will turn out to be, but be aware that if you need to complain about an ADR provider, they must also comply with the ADR directive and supply details of a certified ADR provider to resolve any unresolved disputes! Will there be an Ombudsmen’s Ombudsman set up to deal with this?
In fact consumers and businesses do have a choice between ombudsmen who investigate complaints and issue a binding decison and mediators who will negotiate between the parties and try to reach a binding agreement. Mediators may not be as good at promoting themselves in the press, but the high success rate of mediation and the voluntary nature of the whole process should be considered to be a distinct advantage to businesses and consumers. There is a choice….Disclaimer: The information and any commentary on the law contained in this article is for information purposes only. No responsibility for the accuracy and correctness of the information and commentary or for any consequences of relying on it, is assumed by the author. The information and commentary does not, and is not intended to amount to legal advice to any person on a specific case or matter. The article was written on the date shown and may not represent the law as it stands subsequently. For the avoidance of doubt, the views in this article are personal to the author and not attributable to any other individual or organisation.