New student rights to redress

Students at private universities are to get the right to take complaints to the sector’s independent adjudicator.

Times Higher Education reports that a clause applying to students in England and Wales was added this week to the Consumer Rights Bill currently making its way through Parliament. It will give students at private higher education institutions in receipt of Student Loans Company funding the right to take unresolved complaints to the Office of the Independent Adjudicator for Higher Education (OIA) – a right currently only given to students at publicly funded institutions and at the few private institutions that have voluntarily subscribed to the OIA. All students at private providers with at least one course designated for SLC funding will have access to the OIA. The change is intended to take effect on 1 September 2015.

Interestingly, this might also lead to more students having access to mediation for their complaints, if they choose. The OIA is one of a few independent ombuds schemes that uses mediation as one of its complaint-handling tools. In addition to its process of review by its team of adjudicators, it has an external panel of independent mediators. In appropriate situations and with agreement of both parties, the OIA can refer a complaint to mediation. This can be as an alternative to review or, in some cases, once a complaint has been reviewed and the adjudicator upholds it fully or in part. It can be useful, for example, for reaching agreement on actions to remedy a problem and to prevent future problems, particularly where there is an ongoing relationship between student and university.


Analysis: What’s in a name? The challenges of terminology in studying ombuds practice

UKAJI

Varda Bondy, Margaret Doyle, and Carolyn Hirst

IRbO_logoThis month saw the publication of a Nuffield Foundation-funded mapping study on the use of informal resolution by ombudsmen (download here), launched at two events in London (at the Nuffield Foundation) and Edinburgh (at Queen Margaret University). Both were attended by practitioners and representatives from administrative justice fora from the UK and the Republic of Ireland, as well as academics with specialist expertise and interest in this field. Such an audience was, unsurprisingly, not shy about giving their reactions and offering their own views – which is how it should be, and it is hoped that the report will encourage further discussion of the issues raised in it.

While ombudsman schemes are in themselves considered to be part of the ADR scene, various alternatives to the investigation process as originally designed have been developed over time. Little was known about the process and…

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Gazing at the ADR landscape – Is the EU Directive just a mirage?

As a North American transplant to this cynical and self-deprecating island, I usually find I’m the lone Pollyanna in the room. Seeing the sunny side is part of my national nature. It doesn’t help that I’ve been a mediator for 25 years and am trained to see opportunity in adversity and promise in conflict.

But I’m more Cassandra than Pollyanna when it comes to the European Union ADR Directive and the excitement those unexciting words seem to inspire among colleagues in the dispute resolution world.

The Directive is aimed at addressing the gaps in consumer redress within and across European Union countries. It requires member states to ensure that there is independent appropriate dispute resolution (ADR) available for consumers to use as an alternative to courts for resolving disputes with traders and businesses. ADR must be free or low cost, accessible, quick and transparent.

So far, what’s not to like?

The main problem is that member states can choose whether or not to make businesses sign up to ADR, and Britain is unlikely to go down that route – this government has an allergy to anything that looks like regulation or bureaucracy or constraints on market freedom. So the upshot is that reputable businesses, ones that want to provide good customer service and can afford to pay for independent redress, will engage with the new requirements. The rogues of the consumer world – and not just the rogues, but the tiny, the tired and the overstretched – are all likely to say ‘no thanks’ to a consumer asking for independent redress. So ADR will be available, but it won’t necessarily be used. It could all turn out to be an exercise in fancy window dressing.

But not being used isn’t the worst thing that could happen – consumers who can’t get their trader to use an ADR scheme can still use the courts – and the small claims procedure in many ways is becoming more accessible and user friendly. I know from previous research I’ve carried out with court users that the fear of court is often unfounded; people are surprised to find they could manage the process without a lawyer. The small claims procedure has most of the attributes set out as desirable in an ideal ADR scheme – independent; a low barrier (court fee) that acts as an effective filter for vexatious complaints; a mediation option available if both parties agree, and a binding legal determination if necessary. Speed for small claims is variable but can be weeks rather than months or years.

What worries me more is what kind of dispute resolution we might end up with. In order to make their product attractive to businesses (which are the target ‘customers’, because they’re the ones paying for it), ADR providers will be pressured to compete on price and provide cheap and cheerful dispute resolution. That might suit some disputes, but not others. The Directive doesn’t distinguish between ADR processes, so mediation is lumped with arbitration, ombudsmen with conciliation, all in a soupy mix. Is anyone considering what types of dispute resolution work best for which consumers, which complaints?

I suspect that the ombudsman model – and in particular its emphasis on seeking evidence and on feeding back to the profession or industry complained about in an attempt to improve the actual services and internal complaint handling – will be pushed out in favour of a complaints’R’us approach – an assembly line of escalated complaints, which can offer a cheaper cost basis for the businesses that are its customers. Businesses could even find it’s cheaper to send their complaints to the ADR scheme rather than handle them properly themselves.

Is that what we’re aiming for? I’m open to being wrong, and indeed hope I am. But for now Cassandra is winning over Pollyanna in the landscape gazing.