Ombudsman Services response to the Intellectual Property Office consultation. Response to the IPO consultation on Mediation Service

Transcription

1 Ombudsman Services response to the Intellectual Property Office consultation Response to the IPO consultation on Mediation Service

2 Ombudsman Services response to IPO consultation on the mediation service Author Mark Glover Status Final Date last revised (and reason) 24/07/12 Version number 0.5 Distribution IPO Office Purpose of the document Related documents Response of Ombudsman Service Ltd (Ombudsman Services) 1. Summary 1.1 The Ombudsman Service Ltd is a company limited by guarantee that provides ombudsman services for the energy, telecommunications and property sectors, by appointment or approval from the relevant regulators. Established in 2002, Ombudsman Services now has over 8,650 participating companies. During 2011/12 we responded to 203,148 contacts and resolved over 18,000 complaints. The company employs over 170 people and has a turnover in the region of 6.4 million. 1.2 Mediation is not the only method of dispute resolution. Rather than be prescriptive, our view is that each case should be considered on its merits and an appropriate method of resolution chosen. It is Ombudsman Services view that what ever scheme is used it must comply with a number of important elements. The scheme we operate does this and is consistent both with the Cabinet Office s guidelines and the Ombudsman Association s conditions for membership. It also adheres to the Ombudsman Association s principles of good governance which are: Independence Effectiveness Openness and transparency Accountability Operation with integrity Clarity of purpose IPO s consultation on the mediation service 2

3 1.3 The government itself has an important role to play in promoting ADR as both BIS and the Ministry of Justice wish to see greater use of mediation when resolving disputes.. BIS has responded positively to the EU s proposals on consumer ADR and online redress in support of the single market. Our view is that ADR not only promotes good business, assists economic growth and affords greater protection for the consumer but also allows businesses the opportunity for self regulation and to benefit from the feedback resulting from successful resolution of complaints. 2. Introduction 2.1 The Ombudsman Service Ltd is a company limited by guarantee that provides ombudsman services for the energy, telecommunications and property sectors, by appointment or approval from the relevant regulators. We provide dispute resolution and redress to domestic consumers and micro businesses. 2.2 Established in 2002, Ombudsman Services now has over 8,650 participating companies. During 2011/12 we responded to 203,148 contacts and resolved over 18,000 complaints. The company employs over 170 people and has a turnover in the region of 6.4 million. 2.3 Ombudsman Services is appointed by Ofcom and Ofgem to be the redress scheme for the communications and energy sectors. In the energy sector we have recently taken on the responsibility for complaints about feed-in tariffs, in addition to our existing role providing the alternative dispute resolution scheme for both energy suppliers and networks. The redress service we provide in property developed from appointment by the Royal Institution of Chartered Surveyors, followed by approval from the UK Office of Fair Trading to provide alternative dispute resolution services for estate agents. 2.4 The service has recently been appointed as the Ombudsman and Investigation Service for the Green Deal. We are continuing to develop alternative dispute resolution for copyright licensing/collecting societies. With our sustainable funding model, independence and considerable experience we have the capacity to undertake further work. IPO s consultation on the mediation service 3

4 2.5 To help level the playing field between consumers and companies, we have a contact centre which provides information and helps those who have difficulty in making a complaint. We achieve proportionality by providing alternative dispute resolution through different processes, from informal resolution to in-depth formal investigation. Our decisions are enforceable through the courts. 2.6 Our service is free to consumers and paid for by the participating companies under our jurisdiction by a combination of subscription and case fee. While we consult with the sector participants on our annual budget and business plan, the participating companies do not and should not exercise financial control over the company. Our governance ensures that we are entirely independent from the companies that fall under our jurisdiction. 2.7 Ombudsman Services welcomes the opportunity to comment on the Intellectual Property Office consultation on its mediation service. 3. Specific response to the questions 3.1 Below is Ombudsman Services response to the specific questions raised in the Intellectual Property Office s consultation. MEDIATION 1. Have you ever considered using mediation to resolve a dispute? Who suggested mediation as a possible means for resolving the dispute? What put you off or would put you off attempting mediation? Ombudsman Services does not wish to answer this question. 2. What might attract you to considering mediation? What would you consider to be beneficial in a mediation service? As the consultation recognises, mediation is not the only method of resolving disputes, it can include a number of Alternative Dispute Resolution methods such as adjudication, arbitration or the use of an ombudsman. It is Ombudsman Services view that whatever scheme is used it must comply with a number of IPO s consultation on the mediation service 4

5 important elements. The scheme we operate does this and is consistent both with the Cabinet Office s guidelines and the Ombudsman Association s condition for membership. It also adheres to the Ombudsman Association s principles of good governance: Independence Effectiveness Openness and transparency Accountability Operation with integrity Clarity of purpose A fuller response on more appropriate redress schemes is included in our response to Question Have you ever used mediation to resolve a dispute? If so, what were your impressions? What was the general issue? What did you consider was beneficial? Were legal representatives involved in the mediation discussions? Please refer to our response to Question 1. IPO MEDIATION SERVICE 4. Were you previously aware of the service offered by the Intellectual Property Office? If so, were you aware of the IP disputes on which the Intellectual Property Office could mediate? If you were not aware of the service, do you consider information on the service is readily accessible and helpful? There appears to be no reference to the mediation service the Intellectual Property Office provides on the front of its web site. If the service is to be used it does need to be readily accessible and this is one of the most important places it can be found. The Ombudsman Services web site is clear and uncluttered; it is easily navigable and readily accessible. IPO s consultation on the mediation service 5

6 5. Have you ever considered using the Intellectual Property Office service? What factors influenced your decision not to go ahead? Did you look at the costs and/or costing approach of the Intellectual Property Office Service and how did they compare with other providers? Would a more bespoke service, for instance telephone mediations, linked to a sliding cost scale be more attractive? Ombudsman Services does not wish to answer this question. 6. Have you used the Intellectual Property Office Mediation Service? If so, were you involved in litigation at the time either before the court or the Intellectual Property Office? Was ADR suggested by legal representatives? What are your views on your experience of the Intellectual Property Office Service? Ombudsman Services does not wish to answer this question 7. Do you consider there are certain IP right disputes which are more suitable than others to be resolved through Mediation? If so, please provide examples. As the question implies and our response has made clear, mediation is not the only method of dispute resolution. Rather than be prescriptive, our view is that each case should be considered on its merits and an appropriate method of resolution chosen. 8. Given that the CEDR trained and accredited Intellectual Property Office mediators also have a background in and understanding of IP rights, to what degree and for what types/value of dispute is this specialist knowledge important in helping to resolve the issues? Please give examples if possible. It is important that those who are considering a complaint understand the sector that they are adjudicating; at Ombudsman Services, our ombudsmen and investigation officers have a good knowledge and understanding of the sectors they adjudicate on. Ombudsman Services buys in expertise when necessary. This experience adds to the quality of decision they make and enables both the company and the consumer to more readily accept the decision. IPO s consultation on the mediation service 6

7 9. What could the Intellectual Property Office Mediation Service or a more customerfocussed ADR contribution do to dispel the perceived issues or mitigate against the actual issues around mediation? It would be advantageous if those who provide dispute resolution redress could more effectively promote the benefits of mediation and ADR more generally; including its cost effectiveness, its speed of determination and simplicity. The government itself has an important role to play in promoting ADR as both BIS and the Ministry of Justice wish to see greater use of mediation when resolving disputes. BIS has responded positively to the EU s proposals on consumer ADR and online redress in support of the single market. Our view is that ADR not only promotes economic growth by affording greater protection for the consumer but also allows businesses the opportunity for self regulation and to benefit from the feedback resulting from successful resolution of complaints. 10. Are there ADR/mediation models offered by other bodies which could be replicated by the Intellectual Property Office service? The Intellectual Property Office service may wish to consider the using the model that Ombudsman Services has developed since its inception. The Ombudsman Services model which is easily transferable includes a form of mediation. Our principles of openness include; Independence Ombudsman Services governance and operational structures are separate from those under our jurisdiction and who fund the service, from the operation of the alternative dispute resolution provider to the adjudications it makes. Independence of the scheme is supported by our appointment by the regulator as well as periodic reviews and re-approval of the scheme. Impartiality Impartiality is not just about independence from the bodies under jurisdiction. An ombudsman does not take sides and must also be able to demonstrate impartiality and independence from complainants. Ombudsman Services IPO s consultation on the mediation service 7

8 achieves this through rigorous processes, evidence-based and clearly reasoned conclusions and consistency of recommendations. Awareness of the scheme Companies who have a dispute will need to be advised about the scheme. Business advocacy and advice organisations, as well as the courts industry regulators, will have an important role to play in signposting our service to potential complainants. Accessibility Ombudsman Services believes that a redress scheme should be as accessible as possible. Our service is free to the consumer. We also provide for those who have language difficulties or have specific needs and have a range of ways by which the complainant can interact with the scheme. We use plain, jargon-free language in information and reports as well as the following; (a) Technology has a key role to play in raising the awareness of consumers, making it easier for them to engage with the ombudsman and making the process more time and cost-efficient and transparent. In April 2011, and in line with proposed European requirements, Ombudsman Services launched a new website through which complaints can be made. This will be further developed to allow complainants and companies to track complaints and view progress. (b) The website also gives details of what we can and cannot do, information on how to complain, details of our process and timescales and what action we might take to put things right. (c) For those who do not use the internet, we supply leaflets about our scheme. These are written in plain English and are available in other languages and formats on request. Our enquiry officers are trained in collecting all the information necessary by telephone to capture the key elements of a complaint. IPO s consultation on the mediation service 8

9 (d) We provide translation services and support for those who are sight or hearing impaired. The process We recommend that as with our service, the Intellectual Property Office considers recommending an Alternative Dispute Resolution process which includes a wide range of channels (telephone, , online, letter, fax) for businesses to submit complaints and help in completing the forms, articulating their problems and navigating the process. On receipt of this signed form or recorded oral authorisation, Ombudsman Services for example contacts the participating company to request the relevant case-file of information held about the complaint. In the first instance, every attempt would be made to resolve the complaint informally to the satisfaction of both parties. Where this cannot be achieved or the case is complex, it would be referred on for further investigation. Each party then has the opportunity to request a review if, either there was an error in the report or its recommendations or new evidence has become available. In Ombudsman Services process, if the proposed resolution is accepted by the complainant, it is binding on the provider and again must be implemented within 28 days. Redress Any award that is made should be proportionate and replace a complainant in their position as if nothing had gone wrong. Enforcement of the decision is important if the scheme s reputation is not to be jeopardised. To continue to operate effectively, arrangements should exist which allow the operator of the scheme to be able to pursue every provider within the scheme and, through the energy company, make appropriate recommendations for redress. Such decisions when accepted by the complainant would then need to be able to be enforced through the courts. The IPO s consultation on the mediation service 9

10 Alternative Dispute Resolution provider is also able to report on systemic failures and suggest potential solutions. 11. Are there alternative models/approaches the Intellectual Property Office could adopt which would fill a gap in the market for SMEs? What aspects of these make them attractive and valuable? It is our view that the model outlined in question 10 will be attractive to SME s. Ombudsman services is currently available to individual consumers and micro businesses and our jurisdiction could be easily extended to cover SME s The experience of our participating companies is that they find it both quicker as most of our cases are resolved within six weeks and it is cost effective as they avoid the need for legal representation or going to court. Our participating companies also often find the process useful as there is an opportunity to learn and improve their business practices. 12. Should the Intellectual Property Office be providing this sort of service or is it better provided by relevant representative bodies? Such a scheme does not need to be provided by the Intellectual Property Office; it could equally be provided, as is the case with Ombudsman Services, by an independent company at potentially lower cost and at no cost to the public purse. I would like to invite the Intellectual Property Office to visit Ombudsman Services so we could demonstrate the service we offer. 13. Have you used any mediation services to resolve a cross border dispute? Was the mediation a positive experience/successful/unsuccessful? Ombudsman Services has the facility to provide cross-border ADR. IPO s consultation on the mediation service 10

11 4.2 Ombudsman Services has considerable experience in the field of dispute resolution. We would be happy to provide clarification on any point in this evidence or if there is any other way we can help, please contact me. Lewis Shand Smith Chief Ombudsman 24 July 2012 IPO s consultation on the mediation service 11