1. The dispute system design model presented in this paper is an elaboration of a model first proposed in Gill, C et al Models of Alternative Dispute Resolution: A Report for the Legal Ombudsman (Birmingham: Legal Ombudsman, 2014) pp 74–80 Google Scholar.

2. Mulcahy, L ‘The collective interest in private dispute resolution’ (2013) 33 Oxford J Legal Stud 59 CrossRefGoogle Scholar; Genn, H ‘What is civil justice for? Reform, ADR and access to justice’ (2012) 24 Yale J L & Human 397 Google Scholar.

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4. Woolf, Lord Access to Justice Final Report (London: Lord Chancellor's Department, 1996)Google Scholar; Jackson, Lord Review of Civil Litigation Costs Final Report (London: The Stationery Office, 2009)Google Scholar.

5. We have used the term ‘consumer dispute resolution’ (CDR) in this paper to refer to all mechanisms for the out-of-court resolution of contractual disputes between consumers and businesses. Following Hodges and Creutzfeldt, we prefer the term CDR to consumer ADR (CADR) on the basis that, as out-of-court procedures become the norm for resolving C2B disputes, the word ‘alternative’ is increasingly irrelevant in this context. C Hodges and N Creutzfeldt ‘Implementing the EU Consumer ADR Directive’ (Oxford: Foundation for Law, Justice and Society, 2013).

6. Hodges, C, Benohr, I and Creutzfeldt, N Consumer ADR in Europe: Civil Justice Systems (Oxford: Hart Publishing, 2012) p 200 CrossRefGoogle Scholar.

7. There has been recent discussion in the ombuds community regarding the appropriate and gender-neutral terminology for referring to ombuds schemes. While these institutions have traditionally been referred to as ‘ombudsman schemes’ or ‘ombudsmen’, we prefer the gender-neutral term “ombuds schemes”. For a summary of the debate, see V Bondy and M Doyle ‘Manning the ombuds barricades’ Ombuds Research Blog, 6 June 2015; available at http://ombudsresearch.org.uk/2015/06/ (accessed 17 February 2016).

8. Hodges et al, above n 6, p 448.

9. Ibid, p 389.

10. The EU's recent Directive on Consumer ADR (2013/11/EU) was preceded by a European Commission Recommendation of 30 March 1998 on the Principles Applicable to the Bodies Responsible for Out-of-Court Settlement of Consumer Disputes (98/257/EC) and of 4 April 2001 on the Principles for Out-of-Court Bodies Involved in the Consensual Resolution of Consumer ADR (2001/310/EC). The EU has also legislated for the provision of ADR within specific consumer sectors, such as energy (Directive Concerning Common Rules for the Internal Market in Electricity 2009/72/EC; Directive Concerning Common Rules for the Internal Market in Natural Gas 2009/73/EC). For prominent critiques of the CDR movement, see H Eidenmuller and M Engel ‘Against false settlement: designing efficient consumer rights enforcement systems in Europe’ (2014) 29 Ohio St J on Disp Resol 261; G Wagner ‘Private law enforcement through ADR: wonder drug or snake oil?’ (2014) 51 Common Market L Rev 165.

11. Steffek, F and Unberath, H (eds) Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads (Oxford: Hart Publishing, 2013)Google Scholar.

12. Le Sueur, A ‘Designing redress: who does it, how and why?’ (2012) 20 Asia Pac L Rev 17 CrossRefGoogle Scholar.

13. Although our focus on this paper is on CDR, we note the growing emphasis on issues of design within the justice system and the growing permeability between ‘alternative’ and ‘traditional’ approaches to justice provision. Two recent examples are JUSTICE's report Access to Justice in an Age of Austerity (London: JUSTICE, 2015), which recommends a radical redesign of civil justice procedures with, for instance, the introduction of inquisitorial registrars to perform fact-finding, and the Civil Justice Council's Online Dispute Resolution for Low Value Claims (London: Civil Justice Council, 2015), which sets out proposals to introduce online courts for low-value civil claims. While our model is geared towards consumer-business disputing contexts, it nonetheless seeks to contribute to wider thinking about the design of systems of justice.

14. Office of Fair Trading Mapping UK Consumer Redress: A Summary Guide to Dispute Resolution Systems (London: OFT, 2010)Google Scholar. Note that some schemes used multiple processes, which is why the total number of schemes reporting the use of certain procedures exceeds 95.

15. Hodges et al, above n 6, ch 11.

16. Legal Services Consumer Panel Benchmarking the Legal Ombudsman (London: LSCP, 2013) p 39.

17. W Merricks ‘Private sector ombudsmen and the administrative justice system’. Speech at the annual conference of the AJTC, 12 November 2009; Brooker, S Lessons from Ombudsmania (London: National Consumer Council, 2008)Google Scholar.

18. Gill, C et al The Future of Ombudsman Schemes: Drivers for Change and Strategic Responses (Birmingham: Legal Ombudsman, 2013) p 13 Google Scholar.

19. Bondy, V, Doyle, M and Hirst, C The Use of Informal Resolution Approaches by Ombudsmen in the UK and Ireland: A Mapping Study (London: Hot off the Press, 2014)Google Scholar.

20. L Shand Smith and N Vivian ‘Harmonising the ombudsman landscape’ (Oxford: Foundation for Law Justice and Society Policy Brief, 2014).

21. Gill et al, above n 1.

22. J Stuyck et al An Analysis and Evaluation of Alternative Means of Consumer Redress Other Than Redress Through Ordinary Judicial Proceedings (Leuven: University of Leuven, 2007).

23. Hodges Benohr and Creutzfeldt, above n 6. This is a non-exhaustive list of variations that exist across Member States and is illustrative only. Similar findings emerged from a very recent study of CDR in the European energy sector; see Creutzfledt, N ADR in the Energy Sector in Europe (Brussels: National Energy Ombudsman Network, 2015)Google Scholar.

24. Ibid.

25. The deadline for implementation of the Directive was 15 July 2015. The Regulation came into force on 9 January 2016.

26. Article 5(1). While the technical term in the Directive refers to ‘ADR entities’, we use the terms ‘CDR scheme’ or ‘CDR mechanism’ in this paper.

27. Article 13.

28. P Cortes and A Lodder ‘Consumer dispute resolution goes online: reflections of the evolution of European law for out of court redress’ (2014) 12 Maastricht J Eur & Comp L 14 at 29. See also G Ross ‘The possible unintended consequences of the European Directive on Alternative Dispute Resolution and the Regulation on Online Dispute Resolution’ (2014) 10 Digital Democracy and E-Government 206–221 at 210; available at http://www.themediationroom.com/#!The-Unintended-Consequences-of-the-New-EU-Law-on-ADRODR/c16l/5B9DE931-124A-401B-838D-FEAA603DA2DF (accessed ••••••••••••••).

29. Articles 6–11.

30. Article 20 (1).

31. Department for Business, Innovation and Skills Consultation on Implementing the Alternative Dispute Resolution Directive and the Online Dispute Resolution Regulation (London: BIS, 2014); Department for Business, Innovation and Skills Government Response to the Consultation on Implementing the Alternative Dispute Resolution Directive and the Online Dispute Resolution Regulation (London: BIS, 2014).

32. BIS subsequently announced that it would not tender for the setting up of a scheme, since it was confident that existing providers would be in a position to provide a residual scheme. It appears that this role has now been taken up by Ombudsman Services, although it is not the only scheme to be established and a rival scheme in the form of the Retail Ombudsman has also recently been approved by the Chartered Trading Standards Institute (the relevant competent authority).

33. The regulations implementing the Government's intentions (The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015) were laid before Parliament on 16 March 2015 and came into force on 7 April 2015 and 9 July 2015. The business information requirements came into force on 1 October 2015.

34. The government has indicated that it will continue to consult stakeholders on whether further simplification would be desirable. See Department for Business, Innovation and Skills, above n 32, p 7.

35. Thomas and Frizon argue that, in relation to financial disputes, competition is a threat to a scheme's independence and impartiality ‘because financial businesses may favour the ombudsman they consider likely to give businesses the best deal’. Thomas, D and Frizon, F. Resolving Disputes Between Consumers and Financial Businesses: Fundamentals for a Financial Ombudsman. Report Commissioned by the World Bank (Washington, DC: World Bank, 2012) p 38 Google Scholar. The Sohn Review of the Energy Ombudsman also concluded that a single well-regulated redress scheme was better than competition between service providers [Sohn Associates Independent Review of the Energy Ombudsman: Report Commissioned by OFGEM (London: OFGEM, 2010) p 22], although the Legal Services Consumer Panel (above n 16, p 39) did accept that competition could lead to innovation.

36. F Weber ‘Is ADR the superior mechanism for consumer contractual disputes? – An assessment of the incentivising effects of the ADR Directive’ (2015) 38 J Consumer Pol'y 265 at 283.

37. Bondy, V and Le Sueur, A Designing Redress: A Study About Grievances Against Public Bodies (London: Nuffield Foundation, 2012)Google Scholar. See also Le Sueur, above n 12.

38. Financial Services and Markets Act 2000.

39. Legal Services Act 2007.

40. The Consumers, Redress and Estates Agents Act 2007, for example, requires energy suppliers to become members of a redress scheme and empowers Ofgem to approve such schemes. In the communications sector, the Communications Act 2003 places a duty on Ofcom to ensure the availability of independent ADR.

41. Department for Communities and Local Government Letting Agents and Property Managers: Which Redress Scheme Do You Belong To? (London: DCLG, 2014)Google Scholar.

42. Ombudsman, Legal Listen, Inform, Respond: A Guide to Good Complaints Handling (Birmingham: Legal Ombudsman, undated)Google Scholar.

43. Legal Services Consumer Panel, above n 16.

44. Creutzfeltd, N ‘How important is procedural justice for Consumer Dispute Resolution? A case study of an ombudsman model for European consumers’ (2014) 37 J Consumer Pol'y 527 at 537CrossRefGoogle Scholar.

45. For a discussion of procedural innovations being developed by ombuds schemes, see Gill et al, above n 18.

46. We follow here both Shariff and Bingham who, respectively, describe dispute design as being ‘deliberate and purposeful’ and as being the ‘purposeful creation of an ADR program in an organization through which it manages conflict through a series of steps or options for processes’. See K Shariff ‘Designing institutions to manage conflict: principles for the problem solving organisation’ (2003) 8 Harv Negot L Rev 133 at 135; and L Bingham ‘Designing justice: legal institutions and other systems for managing conflict’ (2008) 24 Ohio St J on Disp Resol 1 at 10.

47. Macfarlane, J Dispute Resolution: Readings and Case Studies (Toronto: Emond Montgomery Publications, 3rd edn, 2011) p 579 Google Scholar. See also Smith, S and Martinez, J 'An analytical framework for dispute systems design' (2009) 14 Harv Negot L Rev 123 at 126Google Scholar.

48. Ury, W, Brett, JM and Goldberg, S Getting Disputes Resolved: Designing Systems To Cut the Costs Of Conflict (San Francisco: Jossey Bass, 1988)Google Scholar.

49. See eg Costantino, C and Merchant, C Designing Conflict Management Systems (San Francisco: Jossey-Bass, 1996)Google Scholar, as well as Bingham, above n 46. For literature relevant to organisational conflict not discussed in this paper, see also: K Slaikeu ‘Designing dispute resolution systems in the health care industry’ (1989) 5 Negot J 395; Rowe, M ‘Options and choices for conflict resolution in the workplace’ in Hall, L (ed) Negotiation: Strategies for Mutual Gain (Thousand Oaks, CA: SAGE Publications, 1993)Google Scholar; Conbere, J ‘Theory building for conflict management system design’ (2001) 19 Conflict Resol 215 CrossRefGoogle Scholar; and Lynch, J ‘Beyond ADR: a systems approach to conflict management’ (2001) 17 Negot J 207 CrossRefGoogle Scholar.

50. Courts: H Fader ‘Designing the forum to fit the fuss: dispute system design for the state trial courts’ (2008) 13 Harv Negot L Rev 481. Microjustice: M Barendrecht ‘In search of microjustice: five basic elements of a dispute system’ Tilburg University Legal Studies Working Paper No. 002/2009 (2009); available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334644 (accessed 2 February 2015); and M Barendrecht ‘Best practices for an affordable and sustainable dispute system: a toolbox for microjustice’ Tilburg University Legal Studies Working Paper No. 003/2009 (2009); available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334619 (accessed 2 February 2015). Technology and DSD: O Rabinovich-Einy and E Katsh ‘Technology and the future of dispute systems design’ (2012) 17 Harv Negot L Rev 151; Cortes and Lodder above n 28; and P Cortes ‘A new regulatory framework for extra-judicial consumer redress: where we are and how to move forward’ (2014) 35 Legal Stud 114. Administrative justice: Bondy and Le Sueur, above n 37.

51. The division of the literature into these categories is based on the predominant focus of the literature; in practice, most of the works touch, at least to some extent, on the process of DSD and the principles, features and characteristics of DSD.

52. Ury et al, above n 48, p 20.

53. Costantino and Merchant, above n 50, pp 97–100; and Macfarlane, above n 47, p 600. See also C Bendersky ‘Culture: the missing link in dispute system design’ (1998) 14 Negot J 307.

54. Macfarlane, above n 47, pp 611–621; Smith and Martinez, above n 49, p 131.

55. Macfarlane, above n 47, pp 604–609; Smith and Martinez, above n 49, p 129.

56. Macfarlane, above n 47, pp 604–609.

57. J Lande ‘Principles for policymaking about collaborative law’ (2007) Ohio St J on Disp Resol 620 at 631.

58. Bingham, above n 46, p 18.

59. Ibid, p 21.

60. Ibid, p 32. For example, Bingham argues that ‘not all DSDs can produce as outcomes all forms of justice’ (p 32).

61. Ury et al, above n 48.

62. See discussion in Rabinovich-Einy and Katsh, above n 50, p 157, on the impact of Costantino and Merchant's work (above n 50).

63. Shariff, above n 46. For a similar view on the importance of institutions as sites of ‘choice architecture’, see R Thaler and C Sunstein Nudge: Improving Decisions about Health, Wealth and Happiness (New Haven, CT: Yale University Press, 2008).

64. Bondy and Le Sueur, above n 37, pp 37–57.

65. Barendrecht, above n 50.

66. Rabinovich-Einy and Katsh, above n 50, p 175. For example, they argue that technology requires us to rethink the way we structure dispute processes and that technology frees up the designer from traditional barriers. They support their argument by reference to a number of examples, including eBay's use of automated negotiation and Israel's Benoam online arbitration system, which is used to resolve disputes between insurance companies over motor insurance claims. The latter system has rejected the traditional view of confidentiality in arbitration schemes in place of establishing a system of precedent and information sharing.

67. Ibid, p 167. They also note the same is true in reverse: the academic literature on online dispute resolution often fails to draw explicitly on the dispute design literature. A recent exception to this is Cortes’ paper on extrajudicial consumer redress, which does explicitly address design issues. Cortes, above n 50, p 127.

68. Cortes and Lodder, above n 28, p 37.

69. F Steffek et al ‘Guide for regulating dispute resolution: principles and comments’ in Steffek and Unberath, above n 11, pp 13–33.

70. Ibid, p 29.

71. Hodges et al, above n 6.

72. Ibid, pp 427–428. They define the ‘requirements of justice’ in terms of confidence and trust, impartiality and independence, transparency, consistency and fairness (p 427).

73. Ibid, pp 449–453.

74. For example, the integration of public services ombuds schemes in England [R Gordon Better to Serve the Public: Proposals to Restructure, Reform, Renew and Reinvigorate Public Services Ombudsmen (London: Cabinet Office, 2014)], proposals to introduce online courts for low-value civil claims (Civil Justice Council, above n 13) and proposals to restructure the judicial system in response to conditions of economic austerity (JUSTICE, above n 13).

75. We do not necessarily share this view and we consider that interest-based approaches may be helpful, depending on the context. We note, for example, that mediation is used by some CDR schemes, such as the Irish Financial Ombudsman Service, the Scottish Legal Complaints Commissioner and the Office of the Independent Adjudicator for Higher Education. Nonetheless, some have argued strongly for rights-based approaches; for example, Eidenmuller and Engel argue that a rights-based approach is best due to: (a) power imbalances, which can mean that bargaining will lead to consumers accepting less than they would otherwise be entitled to; and (b) that consumers have much less reason to maintain an ongoing relationship with the supplier in this context. Eidenmueller and Engel, above n 10, pp 278–282. See also Weber, above n 36, p 276.

76. Preamble, paras 4, 6, 11 and para 15.

77. For example, Cortes points out that the ultimate goal for any ODR platform is to increase trust in ecommerce. Cortes, above n 50, p 126.

78. The Legal Ombudsman for England and Wales is an example of an ombuds organisation that has both a compulsory and a voluntary jurisdiction. The UK's Ombudsman Services, a not for profit limited company that provides a number of different dispute resolution schemes, also includes both compulsory and voluntary jurisdictions. For example, it is appointed by the UK government to provide a dispute resolution scheme for Green Deal and by the Energy Regulator to deal with complaints in relation to energy; in both areas, membership is compulsory for businesses. In contrast, while membership of an approved dispute resolution scheme is compulsory in the communications industry, Ombudsman Services is one of two organisations that have been approved – the other being the Communications and Internet Services Adjudication Scheme (CISAS). Membership of its recently established retail ombuds scheme, on the other hand, is purely voluntary.

79. For example, in Sweden the national board for consumer disputes is a public authority and is fully funded by the state. In the Netherlands, the Geschillencommissies system for resolving disputes receives some public funding in terms of a subsidy to support the overall infrastructure, while business pays for the handling of the individual cases. In the UK, only the Pensions Ombudsman is funded by government in the context of C2B disputes.

80. For a discussion of how the New Zealand Banking Ombudsman Service's fee structure achieves this see Gill et al, above n 1, pp 37–38. A recent government report from Australia suggested that industry ombuds schemes in Australia were better performers than public-sector ombuds schemes and, as well as noting financial incentives to resolve cases early, they highlighted the fact that businesses who fund schemes more generally have a financial incentive to reduce the number of complaints reaching the scheme. Australian Government Access to Justice Arrangements: Productivity Commission Inquiry Report (Canberra: Australian Government Productivity Commission, 2014) pp 337–338.

81. Article 8(c).

82. Articles 6 and 7. For example, the Directive addresses independence and impartiality by requiring the person in charge of a CDR entity to: (a) have the necessary knowledge and skills in relation to consumer disputes resolution and a general understanding of the law; (b) be appointed for a term of office of sufficient duration to safeguard their independence; (c) ensure that the person in charge cannot be subject to instructions from either party; (d) be remunerated in a way that is not linked to the outcome of complaints, and (e) place a duty of disclosure if a conflict of interest arises [Art 6(1)]. For a detailed critique of these provisions, see Weber, above n 36, pp 280–282; and E Vallines Garcia ‘Impartiality and independence of the persons entrusted with consumer ADR’ in M Sturner, F Gascon Inchausti and R Caponi (eds) The Role of Consumer ADR in the Administration of Justice: New Trends in Access to Justice under EU Directive 2013/11 (Munich: Sellier European Law Publishers, 2015) p 79.

83. Steffek et al, above n 69, p 29. Note also Weber's concerns at n 36 on governing boards that have strong links to the trade.

84. Article 6(4) essentially states that, where a professional or business organisation exclusively funds a relevant scheme of which the trader is a member – unless the scheme is run by a collegial body consisting of an equal number of consumer and professional representatives – the scheme must demonstrate that it has a separate budget sufficient to fulfil its tasks. Additional requirements relating to equal consumer representation are also required for in-house ADR procedures that have been approved under Art 2(2)(a) (the UK will not be approving in-house schemes). There does not appear to be any requirement for consumer representation in schemes that do not fall within either of these definitions.

85. R Kirkham and P Wells ‘Evolving standards in the complaints branch’ (2014) 36 J Soc Welfare & Fam L 190.

86. Steffek et al, above n 69, pp 28–29. They do go on to recognise that limits to confidentiality will be appropriate in some cases where abuse may otherwise occur.

87. Hodges et al, above n 6, p 452.

88. Ibid, p 445. For example, the UK's Financial Ombudsman Service publishes all ombuds decisions as well as complaints data classified by individual financial businesses.

89. The funding of the provision of advice and information is a complex issue, as many of the existing funding models are predicated on the basis of a case fee per complaint: there is no direct funding of contacts that may never become a complaint. In the UK, for example, only one in five of the contacts received by the Financial Ombudsman Service end up as a complaint, the rest being dealt with by way of advice, information or signposting: Financial Ombudsman Service Annual Review 2014/2015 (London: Financial Ombudsman Service, 2015). The UK's Financial Ombudsman Service appears to embrace this role and also to engage in significant outreach and education work. Other schemes classify such contacts as ‘premature complaints’ (eg England and Wales' Legal Ombudsman and Ombudsman Services), which could be taken as suggesting that they do not envisage a significant role for their schemes in relation to this advice role.

90. Citizens Advice is also to receive extra funding to extend their existing consumer advice service to provide further assistance and advice on ADR (Department of Business, Innovation and Skills, above n 31, p 16).

91. C Hodges ‘Consumer ombudsmen: better regulation and dispute resolution’ (2015) 15 ERA Forum 593.

92. For a discussion of the preventive model of dispute resolution, see Gill et al, above n 1, p 25.

93. For example, the Furniture Ombudsman's capacity to engage in standard-raising work is focused on those areas that are seen as being of particular value to the industry itself, such as providing business advice and low-cost training, rather than the publication of complaint data (Gill et al, above n 1, p 68).

94. Eidenmuller and Engel, above n 10, p 278–282; and Weber, above n 36, p 276. It is perhaps worth noting that the most prominent critics are German academics; this may reflect the fact that Germany has a court system that is perceived as being far more accessible and efficient than others in the EU.

95. Gill et al (above n 1, p 78) highlight the fact that this approach is used by some regulators such as the Advertising Standards Authority in relation to misleading advertising. Advertisers must be able to demonstrate that the claims they have made are true and to provide evidence to the ASA to substantiate any claims.

96. For a discussion of their individual advantages and disadvantages, see Gill et al, above n 1, pp 16–21.

97. Fuller, L ‘Mediation – its forms and functions’ (1971) S Cal L Rev 305 Google Scholar; Fuller, L ‘The forms and limits of adjudication’ (1978) 92 Harv L Rev 353–409 CrossRefGoogle Scholar. For an application of Fuller's ideas to the consumer ombuds context, see Gill, C and Hirst, C Defining Consumer Ombuds Schemes (Warrington: Ombudsman Services, forthcoming)Google Scholar.

98. Arbitration, for example, has become increasingly formal and is now largely being used in commercial disputes only due to its expense. See Roberts, S and Palmer, M Dispute Processes: ADR and the Primary Forms of Decision Making (Cambridge: Cambridge University, 2nd edn, 2005)CrossRefGoogle Scholar; and Blake, S, Browne, J and Sime, S The Jackson ADR Handbook (Oxford: Oxford University Press, 2013)Google Scholar.

99. For a discussion of the argument that consumer ombuds are particularly suited to consumer to business disputes, see Gill and Hirst, above n 97. Others, such as the Australian government report (above n 80, p 334) and the Legal Services Consumer Panel (above n 16, p 39), have suggested that the ombuds scheme model may not be necessary for all forms of consumer disputes and that its use should be reserved to disputes where essential services are involved, there are significant power imbalances or asymmetries of information, or there are a large number of disputes.

100. Cortes and Lodder, above n 28; Cortes, above n 50; and Rabinovich-Einy and Katsh, above n 50.

101. van Veenen, J ‘What dispute tasks to support with ODR, and how to support them’ in Gramatikov, M (ed) Costs and Quality of Online Dispute Resolution: A Handbook for Measuring the Costs and Quality of ODR (Antwerp: Maklu, 2012) p 71 Google Scholar.

102. Inchausti, F Gascon ‘Specific problems of cross-border consumer ADR: what solutions?’ in Sturner, M, Inchausti, F Gascon and Caponi, R (eds) The Role of Consumer ADR in the Administration of Justice (Munich: Sellier European Law Publishers, 2015) p 55 Google Scholar.

103. For example, ombuds schemes such as England and Wales' Legal Ombudsman Scheme or Financial Ombudsman Schemes in the UK and Australia commonly use a ‘fair and reasonable in all the circumstances’ test to assess complaints. Other schemes may make reference to both what the law says, but also relevant codes of practice in deciding the complaint. Those codes of practice have been drawn up by the industry themselves, usually in consultation with consumer groups. For example, the Communications and Internet Services Adjudication Scheme (CISAS) states that adjudicators will be fair and unbiased at all times and will make decisions in accordance with the relevant law, codes or practice and the contract between the customer and the company: CISAS Rules, November 2013, para 5(a); available at http://www.cisas.org.uk/downloads/CISAS%20RULES% 202013%20-%20Final%20Nov%202013.pdf (accessed 16 February 2016). The Institute of Professional Will Writers Estate Planning Arbitration service states that in the event of a rule of law conflicting with a provision of their code, then the interpretation most favourable to the consumer will prevail (rules available at http://www.idrs.ltd.uk/media/text/EPASRules2007.pdf; accessed 16 February 2016).

104. There is no clear guidance on what qualifications are required to be a complaints handler and it appears that, to date, this is a relatively under-addressed area that requires attention in future research).

105. For example, panels are successfully used to resolve disputes under the Dutch model of consumer ADR, Geschillencommissie, in Australia by their Financial Ombudsman Service to resolve some insurance disputes and in the UK by the regulator PhonepayPlus. For further discussion of panels, see Gill et al, above n 1, pp 61–63.

106. Article 6(1)(a).

107. Article 6(6) requires Member States to encourage ADR entities to provide training for ‘natural persons in charge of ADR’. Where training is provided, competent authorities shall monitor those schemes. The fact that this requirement relates only to natural person in charge of ADR is unusual phrasing and it is not at all clear that the requirement will apply to other employees working within an ADR scheme. For example, the Financial Ombudsman Service employs approximately 2000 adjudicators. Member States must ensure that ADR bodies provide information on their website about their expertise, impartiality and independence only if ‘they are employed or remunerated exclusively by the trader’ (Art 7(1)(d)).

108. Weber, above n 35, p 282.

109. For example, O'Brien has recently argued in the context of ombuds schemes in particular that the uptake of accredited training has been relatively modest and the professionalization of this area of complaint handling has so far been avoided. N O'Brien ‘The ombudsman as democratic ‘alternative’: reading the EU Consumer ADR Directive in light of the PASC reports’ (2015) 37 J Soc Welfare & Fam L 274.

110. Macfarlane, above n 47, p 632.

111. Ibid, p 633.

112. Bondy et al, above n 19, p 69.

113. See Macfarlane, above n 47, p 648.

114. E Rolph and E Moller Evaluating Agency ADR Programs: A User’s Guide to Data Collection and Use (Santa Monica, CA: Rand Institute for Civil Justice, 1994) pp 7–10.

115. A report by the Legal Services Consumer Panel criticised the lack of transparency in relation to the data made available from a range of schemes when they sought to benchmark the Legal Ombudsman against others in the CDR sector (Legal Services Consumer Panel, above n 16, p 37). Bondy et al's report also highlighted how a lack of agreement on definition of key terms makes comparisons across schemes very difficult: Bondy et al, above n 19, p 29.

116. The Directive requires CDR schemes to provide certain information on its website as well as produce annual activity reports. The information to be provided in that annual report includes not only data regarding the number, type, outcome and time taken to resolve disputes, but also any systemic or significant problems identified, compliance rates and recommendations on how such problems can be avoided or resolved in the future (Art 7(2)). In addition, every 2 years the ADR entity must provide an additional report to the competent body to include information on the effectiveness of ADR cooperation in relation to cross-border disputes and the training it has provided to those in charge of the ADR entity (Art 19(3)). If the competent authority identifies that a scheme no longer complies with the Directive's requirements, then the competent authority may withdraw its approval and notify the commission (Art 19(2)).

117. Article 19(3).

118. Article 19(3) states that if an approved ADR entity no longer complies with the Directive, then it should be contacted by the competent authority. If it fails to comply within 3 months, then approval should be withdrawn. Garcia (above n 82, p 95) has pointed out that the Directive is a little unclear whether competent bodies have any investigation powers and has called for national laws to clarify this.

119. For example, it is likely to be easier for competent bodies that also have a regulatory function (such as the Financial Conduct Authority or Ofgem) to take action in relation to this than a competent body (such as the Chartered Trading Standards Institute) that does not.