European Civil Justice
This Report summarizes the main points of two recent reviews on the resolution of disputes in England and Wales. One is a study by Professor Christopher Hodges and the other is a Report for the Welsh Government chaired by Lord Thomas of Cwmgiedd, former Lord Chief Justice of England and Wales. There are strong similarities between their conclusions.
- The justice system has broken down in England and Wales. There are too many individual, competing, and overlapping options, which confuse potential users. The system needs to be reconstructed as an integrated single entity.
- Many major dispute resolution pathways are inadequate in delivering justice and should be reviewed. An adversarial system inherently involves levels of cost and delay that defeat people’s desire or ability to reach just resolution of their disputes.
- Experimentation with digitized procedures offers opportunities to modernize processes, with considerable benefits.
- But digitization can exclude a significant number of people and small businesses, who need personal assistance during, after, and especially before starting any formal process.
- Every dispute resolution pathway should be reviewed against its ability to provide satisfactory answers to three questions:
- How do people identify and access information, advice, support, and assistance in solving their problems?
- How do we ensure that dispute resolution pathways are simple, effective, and cost-effective and deliver justice to people and organizations?
- How do we identify systemic problems, and address them so as to reduce risk of future recurrence?
Judged against these criteria, dispute resolution is best delivered through online platforms and modernized Ombuds or Tribunals, which are overseen by principles-based regulatory authorities, and which feed back extensive data on issues that can then be addressed by relevant interventions.
This policy brief outlines major developments and issues in consumer dispute resolution systems in Europe that were highlighted at the conference CONSUMER ADR: Delivering Fairness and Justice for Consumers, Business and Markets held at Wolfson College, Oxford on 18 and 19 March 2019.
The principal findings include:
- There is considerable evolution in the alternative dispute resolution (ADR) schemes in some countries. A notable feature is that many of the ADR schemes are placing increased emphasis on integrating mediation into their pre-existing arbitration-style procedures.
- Many countries continue to find it a challenge to get more businesses, especially small and medium-sized businesses (SMEs) to adopt ADR schemes. Equally, many consumers are either unaware of ADR or imagine it to be an advisory service rather than an independent dispute resolution service.
- There is a clear division between EU Member States that have sophisticated CDR schemes ― and, despite the differences between States, are improving their mechanisms ― and those States that have very undeveloped Consumer Dispute Resolution (CDR provision).
- The national landscapes of ADR bodies continue to present problems, notably lack of full coverage and low consumer confidence in the current system.
- Ombudsmen are the leading model of CDR, since they typically operate as part of the system of market regulation as well as the national system of dispute resolution.There is increasing realization that ‘consumer ADR’ is something specific and should have its own architecture.
This Policy Brief is the latest in a series on Ethical Business Practice (EBP) and Ethical Business Regulation (EBR). It summarizes current thinking on these topics, based on a Conference held at Wolfson College, Oxford on 4 May 2018.
Drawing on the scientific findings of behavioural psychology research, the authors find that there is little empirical evidence that traditional theories of deterrence affect future business behaviour, and that a collaborative, positive approach between business and regulators is most effective in improving behaviour along ethical lines.
Traditional policy on encouraging private enforcement of law is based on deterrence, and approaches to enforcement and hence regulation produce an adversarial culture. While some public regulatory and enforcement authorities cling to deterrence as their sole policy, a number of authorities in some countries (led by the UK) have moved to a supportive approach, as a result of practical experience and the impact of Better Regulation policy.
The policy brief identifies the civil aviation industry as leading the way in adopting an open, just (no blame) culture, which is essential if performance is to be maintained. The initiation of ethical business practice (EBP) has to come from the businesses themselves, individually or in sectors, and based on the organizational values as identified at all levels within the organizational structure, rather than as a 'tick box' or compliance-based approach.
The policy brief concludes with implications of the findings for policymakers, calling on politicians to support an EBP/EBR policy, as has already been the case in Scotland, where senior Scottish ministers have indicated that they will follow a no-blame approach.
Ethical Business Practice and Regulation are new concepts that are transforming regulatory performance and business success.
This conference, organised by the Centre for Socio-Legal Studies and held at Wolfson College, will explain the concepts and share the findings from a series of examples and ongoing pilot studies across a range of contrasting sectors.
On Tuesday 28 November, Secretary of State for Health Jeremy Hunt announced new plans to conduct independent investigations into cases of stillbirt
As we all shop online more than ever before, new forms of online dispute are becoming an increasing problem for today's consumers, and the risks of exposure to scams and rogue traders are at an all-time high. To address this growing ‘digital justice gap’, we invited an international group of experts from the UN, consumer representatives, and academia to consider how to overcome the failure of traditional legal institutions to adequately serve this new digital world of cross-border commerce.
A proposal for an alternative approach to ensure the rapid resolution and redress of cases involving the families of infants injured at birth.
A recent Government consultation proposed a model to improve the way that families of babies seriously injured at birth are compensated.
This policy brief presents an alternative to the current litigation-based approach, outlining a governance and operating model for the Rapid Resolution and Redress Scheme for serious birth injuries, including a fully costed business process for its delivery.
The proposals address each of the key public objectives for such a scheme:
- providing a route to support and compensation for families which is quicker and less contentious than the current system;
- increasing the learning from such incidents in order to drive improvements in clinical and operational practice;
- introducing a no-blame culture in order to increase reporting rates and reduce defensiveness.
The proposals offer a number of advantages over the Government scheme, including a more independent, legitimate, and credible structure, cost savings, and improved efficiency of decisions, helping families to receive compensation more rapidly.
This Policy Brief summarizes the findings of a joint project between Oxford University and the Catholic University of Leuven aimed at evaluating different mechanisms for delivering collective redress. It identifies eleven principles for market regulation, and the three principal goals for collective redress of delivering compensation, affecting the future behaviour of markets, and achieving these goals in a timely and cost-efficient way.
The authors present a significant body of evidence in relation to improving enforcement generally, and collective redress in particular, and make a series of policy conclusions:
1. Redress should not be considered on its own but as an integral part of contributing to strong and competitive markets.
2. The leading contenders for these tasks are the ‘new technologies’ of regulatory and ombudsmen mechanisms.
3. Sectoral and generic regulators should have redress powers as part of their enforcement toolboxes, subject to appropriate oversight mechanisms.
4. Both sectoral legislation that requires ADR and the generic consumer ADR legislation should specify that consumer ombudsmen
models should be required, rather than other types of general ADR.
5. Traditional litigation procedures fail essential criteria of accessibility, speed, cost, efficiency, and outcomes. In comparison, newer technologies score well against those criteria, and when designed appropriately can deliver multiple objectives in relation to making markets work well and protecting consumers and businesses besides just redress.
This conference, hosted by the Centre for Socio-Legal Studies, University of Oxford and the Katholic University of Leuven, will report on a major research project that evaluates the comparative empirical evidence on different mechanisms offering collective redress.