Monitoring Consumer ADR in the EU: A Critical Perspective

Abstract

One of the key objectives of Directive 2013/11/EU (the Consumer ADR Directive) has been to promote high quality ADR entities through the creation of a certification scheme for ADR providers. In parallel, the Directive has also established a monitoring framework in which Member States’ 'Competent Authorities' play pivotal roles to ensure ADR providers’ continuous performance and compliance. Against this background, key questions arise with regard to the enforcement of those quality standards, and the behaviour of those entities that are in charge of monitoring. While presenting the particularities of ADR monitoring schemes established in Member States, this paper argues that, despite the efforts made to promote high quality ADR schemes, the Consumer ADR Directive has ultimately fallen short of securing a consistent approach to ADR monitoring across the EU and has left open the possibility for patchy and disorganised initiatives at Member States’ level. This is due to the high number of national Competent Authorities currently operating in the EU and issues with monitoring architectures, insufficiency of the quality standards set out in the Directive, and risks of highly diverging monitoring behaviour from Competent Authorities. Moreover, the possible coexistence of certified and non-certified ADR providers in some Member States tends to undermine the overall homogeneity of ADR sectors and creates confusion for consumers. A more structured and effective approach to ADR monitoring is needed for meeting consumers’ expectations, ensuring consistency, and creating a levelled playing field for all ADR providers. Competent Authorities have the capacity to contribute significantly to a better rationalisation of ADR sectors, and a better embedment of ADR within civil justice systems. Revised monitoring architectures should help maximise their interventions. In the context of the upcoming publication of the national monitoring reports expected by 9 July 2018, considering these changes appear particularly timely.

Keywords: ADR, Mediation, Alternative Dispute Resolution, ODR

JEL Classification: K40, K41