For those who fly with Airlines in Europe, hotels abroad, roaming charges, and goods or services
By Lorraine Lally, Barrister and Mediator
The EU Regulation on online dispute resolution (ODR) for consumers became operational in January 2016. The definition of ‘online sales or service contract’ should cover a sales or service contract where the trader, or the trader’s intermediary, has offered goods or services through a website or by other electronic means and the consumer has ordered those goods or services on that website or by other electronic means.
The definition of ‘consumer’ should cover natural persons who are acting outside their trade, business, craft or profession. The EU system is interesting in that it extends the traditional definition of consumer to dual purpose contracts. If the contract is concluded for purposes partly within and partly outside the person’s trade and the trade purpose is so limited as not to be predominant in the overall context of the supply, that person should also be considered as a consumer.
The EU measures provide a clear statement that ODR is intended to support the existing Court Processes. The National contact point in Ireland is the European Consumer Centre in Dublin. The ODR contact points shall provide support to the resolution of disputes submitted through the ODR platform by facilitating, if requested, the communication between the parties and the competent ADR entity, which may include, in particular:
(i) assisting with the submission of the complaint and, where appropriate, relevant documentation
(ii) providing the parties and ADR entities with general information on consumer rights in relation to sales and service contracts which apply in the Member State of the ODR contact point which hosts the ODR advisor concerned
(iii) providing information on the functioning of the ODR platform
(iv) providing the parties with explanations on the procedural rules applied by the ADR entities identified
(v) informing the complainant party of other means of redress when
a dispute cannot be resolved through the ODR platform (see Art. 9.8)ODR is now active in Ireland for consumers and businesses to embrace. A huge thank you to the National Contact Point and please feel free to contact Barry Edward Fitzgerald
firstname.lastname@example.org at the European Consumer Centre - Irelandu
Under the ODR Regulation, the European Commission will establish a European Online Dispute Resolution platform (ODR platform). The ODR platform is a web-based platform that is specifically designed to help consumers who have bought goods or services online and subsequently have a problem with that online purchase. It allows consumers to submit their contractual dispute and conduct the ADR procedure online and in any of the 23 official languages of the European Union. The ODR platform transmits disputes only to ADR bodies who are included in the national lists of ADR bodies that comply with the binding quality requirements established by the ADR Directive.
The ODR platform is operational as of 8 January 2016 and made accessible in stages. It will become accessible to consumers and traders on 15 February 2016 under: http://ec.europa.eu/odr
Academia, business and governments universally declare mediation the most cost-effective and quickest manner to resolve conflicts. But do the majority of civil and commercial players even know the practical aspects of this game changer enough to use it with confidence? Have we done our best to let them know?
IT WILL ONLY TAKE 7 MINUTES OF YOUR TIME!
The International Mediation Institute (IMI) invites YOU and YOUR COLLEAGUES to participate in a brief biennial survey to gather information about Mediation & ADR Awareness, IMI Performance, and YOU. IMI launches initiatives to promote worldwide growth of practical and sustainable conflict resolution systems. By completing the survey we can:
IMI is a non-profit public interest initiative to grow mediation by driving transparency
and high competency standards into mediation practice across all fields, worldwide.
The basics of IMI in a Nutshell can be found here:
IMI participates in a number of activities in Europe to promote mediation. One of those activities involves providing input to the European Commission regarding the EU Mediation Directive adopted in 2008.
If you are based in or connected to one of the EU states, we encourage you to express your opinion and views about the application of the EU Mediation Directive in a public consultation launched by the European Commission.
The goal of the public consultation is to capture, review and analyse views from the broadest segment of the population: all interested individuals, mediators, legal practitioners, academics, organisations, courts, national authorities and Member States.
Results of the consultation will contribute to the Commission’s report on the application of the Directive, to be published in 2016.
The Mediation Directive seeks to:
To complete the survey, please click here
An important element of most mediation ground rules is the principle of confidentiality and ‘without prejudice’ privilege. While this has not been fully challenged in Ireland, a High Court case in the U.K. in 2009 created some concerns for mediators and mediation scheme managers.
The case is Farm Assist Limited (In Administration) V The Secretary of State for Environment, Food and Rural Affairs (No.2). Briefly the following is what happened.
A mediator, Jane Andrewartha, had mediated in 2003 and the plaintiffs brought a case to set aside the agreement on the basis of undue economic duress on the part of the defendants. The evidence of the mediator in relation to the conduct of the parties during the mediation was considered critical to hearing the case and it was agreed that she should be invited to give evidence. Her reply was essentially that she had little memory of the facts of the case, had kept very few notes and that the mediation was covered by a confidentiality agreement which prevented her from giving evidence. The defendants decided that it was not worth compelling the mediator to attend as a witness, though the plaintiffs decided otherwise and she was summoned as a witness for the upcoming hearing. The mediator challenged the summons and this led the court to consider in some detail the legal position of confidentiality and privilege in mediation.
The Hon Mr Justice Ramsey clarified the general position as follows:-
1. Confidentiality: The proceedings are confidential both as between the parties and as between the parties and the mediator. As a result even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality but where it is necessary in the interests of justice for evidence to be given of confidential matters, the Courts will order or permit that evidence to be given or produced.
2. Without Prejudice Privilege: The proceedings are covered by ‘without prejudice’ privilege. This is a privilege which exists as between the parties and is not a privilege of the mediator. The parties can waive that privilege.
3. Other Privileges: If another privilege attaches to documents which are produced by a party and shown to a mediator, that party retains that privilege and it is not waived by disclosure to the mediator or by waiver of the ‘without prejudice’ privilege.
Note that where the court believes it is in the interest of justice, it will set aside the protection of confidentiality, though it should also be noted that the circumstances of this case were considered to be exceptional.
The mediator also attempted to rely on a clause in the agreement to mediate which stated : None of the parties to the Mediation Agreement will call the Mediator as a witness, consultant, arbitrator or expert in any litigation or arbitration in relation to the Dispute and the Mediator will not voluntarily act in any such capacity without the written agreement of all parties.
In this case the justice decided that the ‘dispute’ in question was to do with undue economic duress and this was a different dispute to the one which the mediation had dealt with. Consequently the clause could not be relied on.
It should be noted that the case was settled prior to hearing and so the mediator was not forced to give evidence. Some few months after this case, another mediator was summoned to give evidence in a libel case which he had mediated previously. The mediator, Mr Nicholas Pryor, argued that he should not be required to give evidence on the basis that the public interest in protecting the confidentiality of mediators and the mediation process outweighed, or should outweigh, the private interests of justice in a particular case. This aspect had not been dealt with in the Farm Assist’s decision. The parties subsequently decided not to seek his evidence so this remains an open question.
A final point of interest is how the Rt Hon Mr Ramsey viewed Ms Andrewartha’s contention that she could remember little factual detail of the case as it was a long time ago and she had dealt with a large number of mediations in the meantime. Put simply he was not impressed and noted that “Frequently memories are jogged and recollections come to mind when documents are shown to witnesses and they have the opportunity to focus, in context, on events some years earlier. In addition…..as a general rule it will not be set aside because the witness says they cannot recall matters.”
So, while there is no cause for immediate alarm, the case illustrates that mediator confidentiality may not enjoy an exalted position when viewed from a strictly legal standpoint.
Article by Brendan Schütte
Please note that this article is not offered as legal advice and should not be relied upon as such.
In mediation we are well used to focusing on feelings and dealing with emotional energy, commonly expressed as anger, frustration, sorrow, irritation or hopelessness. Turning this energy to good use in resolution, through empathy, is a core and very effective skill. When parties feel better through being listened to and understood at an emotional level, they become better disposed towards changing and agreeing a way forward.
Change, however, can come about in more than one way. While how we feel affects our cognitive processing and our behaviour, there is a three-way reciprocation effect – changing any one of the stances affects the others. So, thinking more usefully about something acts on the feelings we have about it, reduces stress and can result in different behaviour. Similarly, a change in behaviour can lead to a change in feelings which can lead to a change in thinking.
Daniel Kahneman’s recent book ‘Thinking, Fast and Slow’ offers some interesting insights for mediators working on the cognitive side of resolution. He describes two systems of thinking. System 1 is emotional, gut-instinct and speedy. Its probably what we think of as ‘animal intelligence’ and can be very useful in situations where we need to react quickly. System 2 is rational, slower, and oversees System 1 reactions, providing a much more rigorous response. It is what we tend to see as ‘human intelligence’ and has undoubtedly been the type of thinking which has led to many of the breakthroughs in science, medicine, technology and philosophy.
We use both systems but each has its drawbacks. System 1, being quick, jumps to conclusions on the basis of very little fact. It makes connections too easily where there may be no connections. As mediators we are familiar with parties discovering early in joint session how some assumptions they hold are incorrect. This changes the thinking which, in turn, changes how they feel, which in turn changes how they behave. This understanding of a wrong assumption is often the ‘lightbulb’ moment. Reality testing parties’ assumptions yields useful advances.
But wait a moment ! Isn’t System 2 supposed to be watching the System 1 responses ? If so, how did these wrong assumptions survive ? The answer is that System 2 does act as censor, but its drawback is that it is lazy and all too often agrees with whatever System 1 suggests. The customs official simply waves through the holiday crowds, so to speak. This slower type of thinking takes effort and we are so very easily distracted.
Kahneman’s book has considerable empirical evidence to support his views and one example is a study of eight parole judges and their decision-making. The judges spent all day reviewing applications for parole with an average time of six minutes on each case. It was found that approvals reached 65% shortly after the judges had a meal, but had reached close to 0% by the time that their next meal was due. It appeared that the default position adopted by the judges was refusal, and this was more likely to be the result as the judges became tired and hungry. The conclusion was not that hungry judges are vindictive, but rather that reasoning requires energy and the type of reasoning needed in hearing parole requests requires a good deal of energy. Note that this is physical energy (i.e. glucose) rather than just what we call ‘mental energy’. For mediators working on the parties’ cognitive stance, therefore, make sure to provide not only breaks but also energy boosts in the form of biscuits, fruit, chocolate and other nibbles such as jellybeans!
Kahneman also refers to a simple puzzle to test our intuitive responses. Without thinking this through, what is your answer to the following puzzle ? A bat and a ball cost €1.10. The bat costs one euro more than the ball. How much does the ball cost?
The lesson is that intuitive responses can often be wrong, while a more thoughtful response requires energy and a focus that we just may not be up to right now.
For mediators, there is a rich vein of ore in the parties’ thinking which is worth examining in detail. What assumptions have been made, not just about the conflict but also about other matters – what responsibilities do you think employees have in the workplace, how do you think neighbours should live side by side, what do you think is the right thing to do when a marriage breaks down?
Be aware also of your own situation as the mediator. Does your System 1 jump to conclusion too quickly about the parties ? Are your cognitive tasks (e.g. formulating the right question) too onerous and are you lacking in energy or rest ? Remember, the mediator can call breaks for themselves as much as for the parties.
And, if you think of it, make sure to have a few jellybeans.
by Brendan Schütte
Brendan Schütte is a workplace mediator and consultant. He works in the U.K. as a Senior Resolution Adviser for the TCM Group, a highly innovative and leading conflict consultancy.