RetailADR - SCS

unholyangel

Sandtree said:

No

Google "court ordered ADR" and you will find hundreds of articles, whilst in some cases, Lomax -v- Lomax the court ordered it against the wishes of one of the parties in most cases its more a cost risk if one side decides not to properly engage in the ADR. Similarly in McParland -v- Whitehead the judge stated:

Finally, the court encouraged the parties to proceed to a privately arranged mediation as soon as disclosure had occurred, since both sides agreed that it was necessary to see from disclosure whether their suspicions were justified before a useful mediation could take place. The claimants suspected more extensive breaches by the defendant, and the defendant suspected an absence of loss of business by the claimants. In this connection, I mentioned the recent Court of Appeal decision of Lomax v. Lomax [2019] EWCA Civ 1467 (“Lomax”) to the parties. The question in Lomax was whether the court had the power to order parties to undertake an early neutral evaluation under CPR r.3.1(2)(m). It was held that there was no need for the parties to consent to an order

To the best of my knowledge the court simply requires the parties to attempt ADR (or to go to a  supermarket in your analogy) rather than say use one ADR provider over another though in practical terms it's not fully clear how it works.  

Paragraph 25 of Lomax v Lomax:

I do not consider that Halsey v Milton Keynes assists with the proper interpretation of subparagraph (m) because it was dealing with a very different situation. It was concerned with whether a court can oblige parties "to submit their disputes to mediation". It does not, therefore, in my view assist with the interpretation of subparagraph (m), which is dealing with an ENE hearing as part of the court process.

But importantly the paragraph right after it states:

In any event, ENE does not prevent the parties from having their disputes determined by the court if they do not settle their case at or following an ENE hearing. It does not, in any material way, obstruct a party's access to the court. Insofar as it includes an additional step in the process, this is not in any sense an "unacceptable constraint", to use the expression from Halsey. In my view, it is a step in the process which can assist with the fair and sensible resolution of cases.

So relating to ENE rather than mediation/conciliation type services and while the courts can order it, they can't force the parties to settle via it. 

But we weren't discussing whether courts can order parties to refer the dispute to ENE as part of the court process. We were discussing that a court may encourage use of ADR, but they won't advertise or promote the service of any private company because they are a public service, taxpayer funded. You seem to be agreeing with me on that point now. 

Also, not sure who you think said anything about companies getting rich....but "not for profit" does not mean they're not earning a nice fat salary. They're still businesses. Just they allege they have a different or additional motive to trading other than pure commerical benefit to the owner/s.

unholyangel

MrsJKnox said:

unholyangel said:

Sandtree said:

unholyangel said:

Sandtree said:

Shops are now reopened so can you not go in and get swatches now?

How did you get to the ADR in the first place? Was it at the suggestion of SCS or the courts? Assuming its not the court and you think you have a case then send a letter before action and then issue court proceedings if they dont respond as you request.

Public departments (such as HMCTS) won't recommend private companies (which retailADR are). So will likely be SCS, as they're a retailADR member. 

The courts can and do encourage the use of ADR, in some cases even forcing it... I am not sure of any ADR that isn't in the private sector?

You're not sure of citizens advice, acas, financial ombudsman etc? 

A court may encourage ADR, but they're still not going to promote a private company. Imagine a department starts promoting Waitrose as an approved supermarket. All of a sudden Asda, Tesco, ocado, m&s, Sainsbury's are upset because a service they all pay tax to support is promoting one of their competitors.

Impartiality is one of the foundations of our public services. 

This definitely feels bias towards the retailer and not at all impartial.  We supplied so many pictures that clearly show the sofa isn't black.  As it is leather, they won't provide us samples we can bring home so our only option was taking pictures.  Their website shows the colours (we ordered online) and the colour we have clearly matches that of the 'Flint' not 'Black'.  So frustrating.

It will be. The retailADR are a service provider to SCS. SCS is their paying customer. It's not like FoS. With private ADR providers the retailer pay the ADR to deal with their complaints, if the retailer don't like the way the ADR deal with their complaints, they can just go to another provider. Which gives them an inherent (and possibly even unconscious) bias towards the retailer (their customer). 

Your value to the ADR is basically serving as incentive for retailers to sign up and pay the ADR's fees. 

Sandtree

unholyangel said:

Sandtree said:

No

Google "court ordered ADR" and you will find hundreds of articles, whilst in some cases, Lomax -v- Lomax the court ordered it against the wishes of one of the parties in most cases its more a cost risk if one side decides not to properly engage in the ADR. Similarly in McParland -v- Whitehead the judge stated:

Finally, the court encouraged the parties to proceed to a privately arranged mediation as soon as disclosure had occurred, since both sides agreed that it was necessary to see from disclosure whether their suspicions were justified before a useful mediation could take place. The claimants suspected more extensive breaches by the defendant, and the defendant suspected an absence of loss of business by the claimants. In this connection, I mentioned the recent Court of Appeal decision of Lomax v. Lomax [2019] EWCA Civ 1467 (“Lomax”) to the parties. The question in Lomax was whether the court had the power to order parties to undertake an early neutral evaluation under CPR r.3.1(2)(m). It was held that there was no need for the parties to consent to an order

To the best of my knowledge the court simply requires the parties to attempt ADR (or to go to a  supermarket in your analogy) rather than say use one ADR provider over another though in practical terms it's not fully clear how it works.  

Paragraph 25 of Lomax v Lomax:

I do not consider that Halsey v Milton Keynes assists with the proper interpretation of subparagraph (m) because it was dealing with a very different situation. It was concerned with whether a court can oblige parties "to submit their disputes to mediation". It does not, therefore, in my view assist with the interpretation of subparagraph (m), which is dealing with an ENE hearing as part of the court process.

But importantly the paragraph right after it states:

In any event, ENE does not prevent the parties from having their disputes determined by the court if they do not settle their case at or following an ENE hearing. It does not, in any material way, obstruct a party's access to the court. Insofar as it includes an additional step in the process, this is not in any sense an "unacceptable constraint", to use the expression from Halsey. In my view, it is a step in the process which can assist with the fair and sensible resolution of cases.

So relating to ENE rather than mediation/conciliation type services and while the courts can order it, they can't force the parties to settle via it. 

But we weren't discussing whether courts can order parties to refer the dispute to ENE as part of the court process. We were discussing that a court may encourage use of ADR, but they won't advertise or promote the service of any private company because they are a public service, taxpayer funded. You seem to be agreeing with me on that point now. 

Also, not sure who you think said anything about companies getting rich....but "not for profit" does not mean they're not earning a nice fat salary. They're still businesses. Just they allege they have a different or additional motive to trading other than pure commerical benefit to the owner/s.

ENE is a type of ADR and as noted in the later case the courts have pushed people into other types of ADR quoting Lomax, however in the case the parties agreed.

This however goes off the point that courts encourage, at a minimum, the use of ADR including ENE, mediation etc and cases have had impacts on cost awards when parties have refused the courts direction or have not deemed to have not appropriately engaged. So even if parties can refuse courts are still promoting ADR.

To the best of my knowledge all ADR services are private and so the courts are encouraging the use of private services but I'd guess they don't specify which particular ADR firm/service to use. 

So therefore to cycle back to the original point... if the vendor suggested using ADR or did the court suggest it was a valid question... if Retail ADR or ProMediate or some other licensed ADR service is rather irrelevant.