Median Costs of Litigation by Case Type

The directive requires all EU member states to implement the Online Dispute Resolution initiative within 2 years of the regulation’s entry into force. The directive applies to any purchase made domestically or across EU borders.

The official press release can be seen below.

European Commission

MEMO

Brussels, 12 March 2013

A step forward for EU consumers: Commissioner Tonio Borg welcomes adoption of Out-of-court Dispute Resolution

Commissioner for Health and Consumer Policy, Tonio Borg, welcomed the vote of the European Parliament on Alternative Dispute Resolution and Online Dispute Resolution (ADR-ODR) today. This vote confirms the agreement on the two proposals put forward by the European Commission in 2011.

Tonio Borg said: “Today, the European Parliament confirmed its agreement on two key proposals for boosting growth in the Single Market and strengthening the Digital economy. ADR and ODR are a win-win for consumers, who will be able to resolve their disputes out-of-court in a simple, fast and low-cost manner, and also for traders who will be able to keep good relations with customers and avoid litigation costs. It must be stressed that the EU institutions achieved a fast agreement which will significantly improve everyday life for consumers across Europe”.

He also added: “I want to take this opportunity to thank the rapporteurs of the two proposals at the European Parliament, Louis Grech and Róża Thun, for their commitment to reach an agreement. I am also grateful to the Member States and the Presidencies of the Council for their intensive work on these files. This is a truly inter-institutional achievement to boost consumers’ and traders’ confidence in the internal market and its digital dimension.”

The rules on ADR will ensure that consumers can turn to quality alternative dispute resolution entities for all kinds of contractual disputes that they have with traders; no matter what they purchased¹ and whether they purchased it online or offline, domestically or across borders.

According to the ODR Regulation, an EU-wide online platform will be set up for handling consumer disputes that arise from online transactions. The platform will link all the national alternative dispute resolution entities and operate in all official EU languages.

Raising consumers’ awareness is another pillar of this legislation, as traders will need to provide consumers with adequate information on ADR and ODR.

Member States will have two years to implement the ADR/ODR rules. The ODR platform will be operational at the end of 2015.

For more information:

http://ec.europa.eu/consumers/redress_cons/adr_en.htm

Source: http://europa.eu/rapid/press-release_MEMO-13-192_en.htm?locale=en

By Lance Soskin
President, eQuibbly

There are few elements more important to a free and democratic society than an open, fair and accessible justice system. This is never more apparent than when your liberty or livelihood is at stake.

The executive director of The Institute for the Advancement of the American Legal System, Rebecca Love Kourlis, summed-up nicely the state of the American justice system when she said, “If you get in a car wreck, and there’s an argument about who should be paying damages, your assumption is that you can go to court to have that case resolved. The truth of the matter is that’s probably the last place you want to be, because the fees and the costs will ultimately be more than your car is worth, even if you drive a really nice car.”

Due to the nature of our adversarial justice system, it’s more often than not going to be the party with the high-priced attorney who wins in court rather than the party with the more meritorious case. Litigation is a multi-billion dollar industry that favors the wealthy. Much of that money simply lines the pockets of attorneys who charge on average between $300 and $700 an hour to tell us what the law is and how it can be manipulated in our favor to vanquish our opponents. That’s great for the small percentage of Americans who can afford a skilled lawyer, but it leaves the rest of the population at a significant disadvantage.

Even if you have a legitimate case, if your opponent has a lot more money to spend on high-priced attorneys who employ delay tactics, as Kevin O’Leary of Shark Tank and Dragon’s Den fame would say, either “you’re going to be squashed like the cockroach you are”, or those high-priced lawyers are going to have you tied-up in hearings and motions and pre-trial discovery for so many months or possibly years that you will go broke before you ever get the chance to present the full merits of your case.

Given the complexity of our laws and legal procedures, if we want any hope in hell of protecting our rights, attorneys are a necessary evil. But why should the average person or business owner need to pay tens of thousands of dollars in legal fees to get the justice they’re due? If “ignorance of the law is no excuse” when it comes to determining liability or culpability, would it not make more sense for the government to ensure that the laws and procedures can easily be understood by the average person? Shouldn’t justice, in the true sense of the word, be available to everyone?

Although America prides itself on having a fair and accessible government-run justice system, the truth is that for most of us, justice is neither fair, nor easily accessible. The American justice system faces serious issues that are not easily resolved and will not be resolved any time soon without drastic reform. Most of us want, and in fact need, options that are cheaper, quicker and less complicated than going to court or hiring an attorney to fight all our battles. We need to make better use of alternative dispute resolution options such as mediation and arbitration. Given our shrinking budgets, both governments and personal, what other options do we have?

TOP THREE DISPUTE RESOLUTION STORIES YOU MAY HAVE MISSED LAST WEEK:

There’s More to Mediation Than Meets the Eye.  Some trial lawyers look down at mediation as a sign of weakness and lack of confidence in one’s case.  However, after experiencing mediations as both a trial lawyer and a mediator, there is more to a mediation than initially meets the eye… Mediation offers an opportunity to get answers to questions and to fashion a resolution to a case that a victory in court will not provide… ADR Times.  Read More

Calling in a Mediator Helps Solve Workplace Conflicts.  Sometimes it works out quickly, fairly easily and amicably. Other times, it requires multiple meetings, but either way mediation – especially when it’s started early on during an obvious workplace conflict – can go a long way to resolving the problem… Leaderpost.  Read More

The Battle between Google and BT May End in Mediation.  Google itself has said in a statement that it “always [sees] litigation as a last resort” and is defending itself against both the 2011 suit and BT’s “arming [of] patent trolls”, which a source said was a reference to a little-reported case last year involving a non-practising entity called Suffolk Technologies… Gigaom.  Read More

Brought to you by eQuibbly
eQuibbly.com is a free web app created to help people and companies resolve their disputes quickly and fairly online.

We have already discussed how Online Dispute Resolution (ODR) can be a unique and effective way to solve many types of conflict. Most conflict in our lives result from small disagreements and miscommunications with friends, family, neighbors and business associates. If left unchecked, they have the potential to grow into the larger and more serious issues that may require professional help from a trained mediator or arbitrator.

eQuibbly offers solution alternatives for both the less serious disputes as well as the more serious issues. To resolve the former type of dispute, eQuibbly encourages you to post your dispute in public so you can ‘crowdsource’ help from strangers. Often the best advice comes from strangers – people who don’t know you and don’t really care whether you take their advice or not. This is true for a number of reasons.

Strangers are not personally invested in your dispute. Although soliciting opinions from friends and family members can certainly be valuable, it is much more likely,  consciously or not, that they will be influenced by factors other than the merits of the argument. People who are intimately familiar with the conflict or the disputing parties are likely to have pre-existing biases or shared personal relationships which will no doubt influence their suggestions and opinions.

When offering advice, rather than being biased by irrelevant factors such as how what they say might affect their relationship with one of the parties, strangers will draw on their own experiences with similar situations. This can be helpful since it provides an opportunity to learn from someone else’s mistakes and successes.

The disputing parties also will be more likely to heed strangers’ advice since those strangers have nothing to gain and nothing to lose – they have no dog in the fight. Often people in the midst of a disagreement will lose sight of the facts and the merits and become mired in a battle of wits and egos. It’s no longer whether one side is right or wrong – it’s whether one side can out-smart the other or whether they can be more persuasive. No matter what the ultimate cause of a conflict, at some point it can become difficult to admit defeat or agree to a compromise without a crushing blow to the ego. If a dispute reaches this stage, it is a lot easier taking the same advice from a stranger than your adversary.

Posting a public non-binding dispute on eQuibbly is an efficient and effective way to solicit advice from strangers and arrive at a mutually satisfactory resolution to your dispute, or at least one that is fair.

Identifying the right person to speak with can make the difference between a quick and satisfactory resolution and hours relegated to ‘complaint hell’ where nothing makes much sense and you seem to have to keep repeating yourself to different people who cannot or will not help you. One outstanding source for this kind of information is the president’s assistant.

The president’s assistant often knows more about who does what in the organization than the president does. If you treat the assistant with respect and are calm when explaining your situation, they are usually more than happy to find out whom you should be speaking with and put you in touch with that person. When an employee gets a request from the president’s assistant they often treat it as if it is coming from the president him/herself, so ask if he/she wouldn’t mind copying you on an email to the person you should speak with. That should do the trick, but if it doesn’t, ask the assistant if you could write an email to the president and have the assistant bring it to his/her attention.

Contact senior management. Front line workers and customer service reps are often the moat protecting the castle. They are there to resolve simple issues and to dissuade you from further pursuing your complaint. When they tell you there is nothing more “they” can do, it is often technically true – they personally are restricted by the company from doing more, but often the “company” can do more. If you’re not satisfied always ask for a manager. If they tell you they cannot escalate the issue to a manager, insist on it and ask for their name and ID – always record a name and an ID when possible so they’re aware you plan to hold them liable for what they tell you. It’s also useful if you need to speak with the office of the president as they typically want to know that you’ve spoken to customer support and a manager before contacting them.

If customer support won’t transfer you to a manager, contact corporate head office directly and ask, by name, for the VP of Customer Support or VP of Sales or someone with a similar title – check their website for the name of the person who holds this title. Typically the higher up the chain of command you go, the more leeway they will have to resolve your issue. Be persistent. Don’t give up until you feel you have received a satisfactory response, or you don’t have anyone higher up to contact. If necessary contact the “office of the president”.

Threaten without threatening. Blatant threats tend to make people combative. So instead of threatening to sue them, hint at a less-than-beneficial outcome for their company should your situation go unresolved. For instance, if you are speaking with a person in management senior enough to care about the company’s reputation – you might say, “I have pictures of the terrible work your company did. I would rather show the pictures to you and resolve this issue privately, than post the pictures on Facebook or Twitter where your potential customers will likely see them.”

Speak to your credit card company. If you used your credit card for the purchase, your credit card company will sometimes be willing to help resolve a dispute, if not reverse a charge, especially if you have some proof that the company did not give you what you paid for. Merchants do not want to develop a bad reputation with the credit card companies so if you involve them, the company may be more willing to resolve your issue.

Reserve at least 25% of the payment until completion. If at all possible, one strategy that you should keep in mind when purchasing anything of value is to withhold a portion of the payment until the completion of the transaction. Do not make the final payment unless you are completely satisfied. This holds especially true with contractors.

Take a picture. The old saying “a picture is worth a thousand words” couldn’t be more true when explaining to a company why you don’t think you got what you paid for. If you ordered a product and it arrives broken in the box, take a few photos of it in the box. If someone did a horrible job painting your house, take a photo. There is nothing more descriptive than a picture when trying to resolve a situation like this with company management. And if you ever decide to use mediation or arbitration or go to court, pictures can be very useful evidence.

A few considerations prior to complaining. Prior to speaking with anyone about your situation, concisely record the details of your complaint and know what your ideal resolution is and what you will settle for. You need to explain why you are dissatisfied and what you would like done to correct the problem. Shoot high without being unreasonable. Keep copies of all correspondence with the company.

Post your dispute on eQuibbly. If all else fails simply post your dispute on eQuibbly. You will have a better chance of the company responding on eQuibbly if you provide us with the email address for the VP of Customer Service or a similar position. If you can’t find an email address, eQuibbly may be able to find it for you – use the “Help – Contact Us” tab on the homepage.

Whatever route you choose, keep reminding yourself to be polite but firm. Do not lose your temper or your sense of humor. It will be easier to come to a satisfactory resolution if you are reasonable and fair.

What strategies have worked for you when you complained to a company about their product or service?

We have learned over the past several years that to survive, many businesses eventually need to either transform their business to one conducted mostly, if not wholly, online. Netflix versus Blockbuster is a prime example. Or businesses that cannot be wholly online due to their very nature, must at least have a solid online presence.

Although success has been elusive for all but a few established brick & mortar alternative dispute resolution providers, such as the American Arbitration Association, the time is right for Online Dispute Resolution (ODR) to emerge as a force for change and supplant, or at the very least enhance, traditional methods of resolving a dispute whether it is the courts or traditional brick and mortar arbitration and mediation.

There are many reasons why ODR has a much better chance now of being successful than at anytime in the past:

1. There are already excellent examples where online dispute resolution has worked well. One oft used example is eBay. Another is Wikipedia – there are constantly disputes between contributors that must be resolved.
2. Enforcement of an ODR outcome is much easier now than ever before. Online businesses using ODR like those mentioned above have always had an advantage over other traditional businesses when it comes to enforcement for a few reasons, including that the disputing parties typically rely on continued use of the service and do not want to have their access blocked, or receive a black mark on their public profile.

   Now the courts in North America have moved a long way to leveling the playing field, making it much easier than ever before to enforce arbitration awards and mediation settlement agreements for all individuals and companies. Partially due to budget cut-backs for the judiciary and a huge backlog of cases, the courts are now in favor of private dispute resolution and willingly recognize and enforce arbitration awards with very little fuss, time and cost. It is now easier than ever before for anyone with an arbitration award to convert it to a court judgment with a simple summary application to the court and enforce it just as any court judgment could be enforced.

3. Due to the nature of our ever more connected and accessible global community, there are a lot more cross-border (State, Province & Country) transactions and contracts – both consumer and commercial. Trying to decide on a legal jurisdiction in which to try the case when the disputing parties are in separate jurisdictions is often a fight in and of itself. If that is overcome the next problem is enforcement of the judgment in a jurisdiction outside of where it was awarded; if it is even possible, this is often a time-consuming and costly task. There are no such issues with ODR since it does not rely on any one jurisdiction. Many countries, including the U.S. and Canada, are signatories the New York Convention which allows for enforcement of ODR decisions in either of the parties’ jurisdictions. Many businesses prefer arbitration over litigation for this reason alone.
4. ODR is gaining credibility as some governments move forward with initiatives to take some cases out of the physical courts and put them online to save money and time. For example, British Columbia passed legislation recently that will pave the way for an ODR system that will see most small claims under $25,000 be decided online beginning in 2013 or 2014. It is expected to take about 60 days to resolve a dispute online, compared to 12 to 18 months in small claims court. Another example is the European Commission’s initiative to put in place a Europe-wide ODR platform for cross-border online consumer transaction issues. The idea is to create an EU-wide single online platform which will allow consumers and businesses to solve contractual disputes entirely online within 30 days.
5. The Millennial Generation, those now aged 15 to 30 grew up with the Web and computers and find it very easy keeping pace with technological changes. With the advent of online banking, shopping, dating, file sharing and almost every other activity that does not require face-to-face interaction, it is second nature for them to conduct most aspects of their lives online. They are as comfortable, and often even more comfortable, living their lives online as off-line. The number of activities they would prefer to be doing online increases every day. How many people under 30 go to the library to do research, or pick up the hard-copy of a newspaper? How many people under 30 do you see waiting in line at the bank to initiate a money transfer or pay their Bills? You also can’t discount the 30 to 40 year olds, most of whom are avid users of technological innovations they never dreamed they would ever be able to figure out when they first started appearing 5 or 10 years ago. Let’s also not rule out many of those over 40 who have managed to learn to like, if not love, many of the online services. More and more I see 65 and 70 year olds posting on Facebook and using their shiny new iPhones and iPads to do things online they never thought possible.
6. Of course there’s also the advancements in technology factor. Compared to only two or three years ago, it is now much easier to communicate online in an effective, efficient and economical manner. Access to the internet, internet speeds, instant communication via voice or text, and video are no longer only available to those with deep wallets. Now, almost everyone can take advantage of these features.

Why does eQuibbly specifically have a better chance of success than its predecessors?

We keep it simple, offer options, and people can use most of it for free. eQuibbly functions much like many modern apps do; it’s intuitive and easy to understand, making it simple for those unfamiliar with technology to use it without the need for a manual. eQuibbly is a one-stop shop for resolving many types of disputes, from the minor family quibbles to the more serious breach of contract disputes. Individuals and businesses can choose to either have their disagreements resolved in a public forum, in a virtual private room using mediation, or in a virtual private room using legally-binding arbitration. The arbitration award provided by eQuibbly is enforceable in courts throughout North America upon a summary application.

No other company in the past has offered an ODR solution that is as comprehensive and as simple to use as eQuibbly.