ADR

I have not mentioned ADR for a while - it was a dark time - a time of changing my views on society and the rules of law and justice beyond reason. I was not in a happy place...

But this week I have a meeting that involves ISPA. It seems OFCOM and/or CISAS are interested in changes to the ADR system. This has to be good!

To explain, for those that do not know, ADR is meant to be an alternative to using the courts to resolve a dispute, the clue is in the name Alternative Dispute Resolution. Supposedly the courts are too scary ?!?!?! It is designed to be biased in that the telco pays regardless and that decisions are only enforced against the telco - so it is in no way an alternative to court for resolving disputes. A court has power to make judgment either way and enforce it. A court awards costs (albeit minimal) against the loser in most cases. ADR is a kangaroo court type of alternative to court.

Given that the court service itself has an ADR - a telephone call to the parties for an hour to try and resolve the dispute by arbitration - at no extra cost as part of the process, having an alternative to this alternative to court is simply not necessary anyway.

The one case we had was wrong in every conceivable way, from the fact the claimant was clearly a communications provider, to the complaint being later that the 6 month time limit, to the fact that all they asked was to be "let out of the contract with no penalty" which had already been done, to the final judgment that agreed we were not in breach of contract but insisted we pay compensation and write off charge that post dated the dispute and had been agreed in writing with the complainant already. Legal advice was to pay up - in hind sight I wish I had not.

My huge challenge is keeping my cool and proposing changes that have a positive effect on the legislation and process.

This will be hard, very very hard.

One has to wonder what could change. Ideas so far....

1. Scrap it - allow courts and their arbitration option to be used instead.
2. Keep it - but accept courts arbitration as valid ADR scheme.
3. Consider loser pays a fee of some sort to discourage bogus claims.
4. Have a front end (free or covered by claimant fee) vetting of claims.
5. Have a means to reject bogus claims with no cost to ISP (as above really).
6. Have an option of lower cost simple mediated arbitration call like the courts do.
7. If must be ISP pays, allow ISP to cover court fee to allow access to courts arbitration scheme as way cheaper than any of the ADR providers now.
8. Don't have ADR for small ISPs. A size that covers us!
9. Regardless of other changes, make some clear cut rules - a point that a dispute is formally closed and so cannot ever go to ADR later (as part of compensation offer maybe). A point at while disputes formally starts (actually meets some basic criteria for a valid dispute). Remove all of the ambiguities that exist now.
10. Allow ADR opt-out by end users not wishing to burden ISP with ADR. Most of our users would happily opt-out and confirm so clearly at time of order.
11. Clarify "communications provider" exception in the law - it seems to cover anyone "operating a communications network" which could mean they are in charge of a gigabit switch at home.

Update:

We have made some constructive suggestions.
We have understood more about how CISAS work and it is better than we expected.
We have suggested the concept of a dispute over "quality of customer service" is a nonsense as (a) there is no legal basis for compensation for poor customer service (we exclude customer service from our contract even), and (b) we would not actually "dispute" such a complaint (we'd dispute a claim for compensation for such as a contractual matter which CISAS do not handle either). They were very confused by the idea that a complaint could fail to constitute a "dispute" if we do not disagree the complaint. They point blank refused to agree on a definition of "dispute" in the meeting.
However, overall, a good meeting.