Adjustments planned to be made to the ADR Directive EEMG is alongside the European Commission

Since the transposition of the ADR Directive in May 2013, Europe has been keen to regularly bring together all the players in alternative dispute resolution methods. Plenary meetings take place once or twice a year. The last "ADR Forum" took place via interactive videoconference on September 28 and 29. More than 120 participants followed these two days, with a lot of interesting debates. Several members of the EEMG (European Energy Mediators Group), participated in the round tables and intervened in the debates.
Among them, Benedicte Gendry, President for the EEMG Group and Ombudsman for the EDF Group, Alessandra Di Costanzo, Head of Associations and Stakeholder at Edison, also and EEMG member, and Nathalie Cadier, Deputy ombudsman for ENGIE Group, and also an EEMG member attended. You can find the slides of Bénédicte and Alessandra's presentations.

This session was particularly important because the European Commission
 launched a reflection on the ADR legislation, which it wishes to revise, after a few years of hindsight. Several reasons explain this desire of Brussels. The pandemic has accelerated the evolution of business practices and the digitization of activities in all professional fields. Consumption habits have changed and new opportunities are emerging in the management of commercial relationships and in the possibilities of settling disputes.

The establishment of the new Commission and the health context had constrained the progress of the Commission’s work. Work has resumed with increased intensity to allow the proposed legislative adjustments to be made.

There is now sufficient hindsight on the deployment of the 2013 ADR Directive at European level. A 
comparison of the different experiments is being launched and the working group will select the actions that seem to work best. She will question herself on the continuation of those which seem less effective.

The two-day format offered an alternation of plenary sessions and thematic and sectoral workshops promoting exchanges. The debates were supported by testimonies and feedbacks on experiences. Institutional actors shared the floor with consumers associations and Companies representatives to express themselves widely on their vision and expectations. (Link to the agenda).

The Plenary introductory session was hold by Nils Berhndt, from DG JUSTICE and focused on the role of the ADR architecture (Alternative Dispute Resolution) in strengthening the retail trade. And the conclusion was made by Didier Reynders, European Commissioner for Justice, who gave his feedbacks on the debates.

Here are the key issues raised during the debates:

- Knowledge of the process by consumers and professionals, access to the process for all, whether the process should be mandatory or not, harmonization of the framework of the process, the complementarity of ADR types.

- The question of the binding nature or not of the proposed solution.

- The need to harmonize processes for cross-border disputes.

- The relevance of group actions, in particular for small disputes.

Three challenges are to be taken up:

- Ensure that all professions are covered by the consumer mediation process. The debate left the question open as it did not seem obvious that all professions have enough consumer disputes to resolve.

- Remove the barriers to access to mediation of consumption, through advertising, but also with the support of typical associative or institutional structures that can help the most fragile and those furthest from digitalization.

- Strengthen the skills of consumer mediation, in particular through training.

Focus on digitization:

The digital processing of ADRs accelerated with the pandemic and allowed activity to continue during the health crisis. There is also a growing expectation from consumers, who want things to go FAST.
Speed is the magic word, the sesame, an imperative, according to the commission, and Marie-Paule Benassi, from DG Justice, highlighted this trend.

Several presentations and discussions made it possible to understand what the digitization of processes can bring, but also its limits:

- The issue of securing personal data emerges as a point of attention,

- The accessibility of digital solutions is a problem to be integrated: some countries such as Italy have set up support solutions that allow everyone to be included. The obligatory aspect of the ADR solution before the judicial solution helps to leave no one behind.

- Digitization makes it possible to speed up the process and therefore to resolve disputes more quickly, and to provide better homogeneity of processing. It is a relevant solution for mass treatment.

- The deployment of platforms represents a significant investment, and recurring costs that must be anticipated. The proposed solutions do not offer much flexibility. These platforms are not necessarily relevant for limited volumes.

Two levels
of digitization emerged:

- The development of online referral procedures is accessible to all and makes it possible to streamline and speed up the process. It seems to be generalized.

- On the other hand, the use of artificial intelligence in dispute resolution should be reserved for mass processing. Artificial intelligence can only adapt to simple and recurring cases.

Either way, the online process should be easy for the consumer and the consumer needs to be guided.
Digitization should make it possible to speed up the process: some examples showed dispute resolutions in a few days and in any case less than a month.

The participants all raised the need to find a balance between digitization as a tool of greater efficiency and the imperative of human support in ADR processes. One of the keys to successful mediation lies in human contact and listening to the parties.

Concrete solutions which appear to be effective have been presented, in particular by Italy and France. The Italian example of joint conciliation appears to be very effective and provides a high level of protection for consumers.

Finally, the discussions revealed that the ODR platform set up by the European Commission was too complex. A project will have to be carried out to redefine its positioning and make it evolve.

The other advantages of ADRs highlighted during the congress:

- Its flexibility and therefore its ability to adapt and integrate new disputes. ADRs also make it possible to detect changes and new trends in consumption patterns. For example, consumers are increasingly attentive to their environmental footprint.

- The issue of cross-border disputes, the clarification of the place of dispute resolution, transparency for the consumer and the harmonization of cross-border processes is one of the subjects that the Commission must address in the revision of the Directive.

- Ultimately, the challenge is to have the confidence of businesses and consumers, through the transparency, neutrality and speed of the system. All forms of ADR have the same vocation to facilitate the resolution of disputes and to offer an effective alternative to justice.

The EEMG shares and confirms the importance of creating a climate of trust with all parties to the dispute.

To this end, the independence of the Mediator is key. In France, the fact that the Consumer Mediator, whether he is a business mediator or a sector mediator, is appointed and regularly monitored by an independent State authority, the CECMC (Commission of evaluation and control of consumer Mediation) 
is key.

Trust is also created through listening, confidentiality, transparency, impartiality : principles and values all embodied by the ombudsmen. In this sense, proximity and direct link with the consumer is essential.

The strength of the mediation process and its success, always lies in the fact that mediation must remain a procedure of last resort before justice. Its quality therefore lies in the scarcity of requests. Otherwise, the risk is to transform mediation into an additional customer service, subcontracting professionals. Mediation must be used, in complete transparency with consumers, as a stimulus that pushes the professional to improve and to better process his complaints: but not to become his subcontractor!

The EEMG also agrees with the position of the European Commission and the participating bodies on the importance of professionalization and initial and continuing training. The members of the EEMG can testify to the effective courses put in place by the organizations to which they belong.

European Commission conclusion:

The European Commission is launching a major study that will continue into 2022, with all ADR players in Europe to understand what is working well and what could be improved. The challenge is to make ADR solutions better known, to make them accessible to everyone, to ensure that they are simple, fair and fast. The proposed revision of the Directive must be finalized before the end of 2022.

Digitization will necessarily be part of the thinking to speed up and standardize processes. Nevertheless, all actors agree on the importance of the human dimension to be preserved. ADRs are clearly positioned as an alternative to justice, which itself is in the process of being digitized.

There is no question of destabilizing the systems put in place in the different countries and which correspond to the specific situations of each culture, the size and the history of each country. EEMG, Energy European Mediators Group, fully intends to bring its contribution to the EC consultation in relation to a potential revision of the ADR Directive.
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