Alternative dispute resolution (ADR) is an out-of-court procedure that is simple, fast, lower-cost and very useful when you encounter problems regarding the purchase of a faulty product or service.
By turning to alternative dispute resolution, you request the intervention of a third neutral party, called an ADR entity, which can be a mediator, conciliator, arbitrator or ombudsman, and who acts as an intermediate between you and the trader in order to identify a solution for you problem.
The solution that the ADR entity offers slightly differs from the alternative solution method in the sense that it can be either a suggestion or it can be binding for the trader. For example, when it comes to mediation, the mediator does not impose a solution, but helps the parties to independently come to an agreement, whereas the conciliator can suggest a solution, which is not binding for the parties, and the ombudsman can make decisions that can both be or not be binding for the parties.
The ADR entities are organizations that offer solutions to consumer related disputes using an ADR procedure. They are extremely varied across the EU and within member states.
In Romania, alternative dispute resolution is covered by the Government Ordinance No. 38/2015 which transposes the Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No. 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR).
Thereby, according to the Government Ordinance No. 38/2015, the ADR entity responsible for offering a resolution for Romanian consumers and traders operates exclusively within the National Authority for Consumer Protection, within a central public authority or within an autonomous administrative authority with responsibility in the matter of consumer protection.
In case the authorities responsible for certain activity fields have not yet established ADR entities, the ADR entity within the National Authority for Consumer Protection can settle the conflicts from the respective activity field.
In the banking field, the ADR entity is the Centre for Alternative Dispute Resolution in the Banking Field, also called the ADR Centre.
The ADR mechanisms apply to domestic and cross-border consumer related disputes, online or offline, which arise from sales or service contracts concluded with a trader based in Romania.
When the disputes are a result of online transactions, starting January 2016, their settlement will be possible through an online European platform – online dispute resolution (ODR) – an interactive website, free of charge and available in all the official languages of the European Union institutions.
The ADR entities must publish on their website information regarding:
- their contact details, including postal address and e-mail address;
- the types of disputes they are competent to deal with;
- the procedural rules governing the resolution of a dispute and the grounds on which the ADR entity may refuse to deal with a given dispute;
- the languages in which complaints can be submitted and in which the ADR procedure is conducted;
- the types of rules the ADR entity may use as a basis for the dispute resolution (for example legal provisions, considerations of equity, codes of conduct);
- whether or not the parties can withdraw from the procedure;
- the average length of the ADR procedure;
- the legal effect of the outcome of the ADR procedure.
On the other hand, the trader based in Romania, who has agreed to adhere to the ADR procedures, must provide by means of their own website information regarding the ADR entity or entities to which they belong, as well as the applicable general terms and conditions of sales and service contracts. The information has to be clear, understandable and accessible.
Also, the trader based in Romania that was not able to individually find a solution to your complaint must bring to your attention that you can request an ADR entity to resolve your complaint. This information has to be provided in writing or on a durable medium (e-mail, CD).
In order to be efficient, the ADR procedure must fulfill the following requirements:
- to be available and easily accessible online and in writing;
- to be available without a lawyer or a legal advisor, meaning that it shall not deprive you of your right to independent advice or to be represented/assisted by a third party or by the representatives of a consumer association at any stage of the procedure;
- to be free of charge;
- to allow the immediate notification of the parties after receiving the documents that contain relevant information about your complaint.
The complaint can be forwarded in writing or online, by means of a website or the European platform ODR, and must fulfill the following requirements:
- the dispute could not be solved directly with the trader;
- the complaint has not been previously analyzed by another ADR entity or by a court;
- the complaint is submitted in an interval of one year from the date upon which the consumer presented the complaint to the trader or from the date of the action that resulted in the dispute;
- analyzing the dispute does not severely affect the efficient functioning of the ADR entity;
- it is within the prerogatives of the ADR entity that has been notified.
The disputes in the banking field call for an additional requirement, and that is for the value of the dispute to be higher than 1000 RON.
The ADR entities can propose/impose a solution. Either one of these alternatives can be possible, but the ADR entities must provide specific procedures for each of them and clearly and correctly inform you regarding the consequences of choosing one of the mechanisms.
If you have chosen the ADR mechanism of suggesting a solution you should know that you are allowed to withdraw from the procedure at any time, if you are not pleased with the activity and the way the procedure develops, and you may, as well, accept or decline the offered solution.
Even if the solution suggested by the ADR entity may be different from a decision of the court, you are still entitled to ask for damages by means of a judicial procedure, if the trader does not accept the suggested solution.
The complaint must be solved in 30 days time from receiving it along with the documentary evidence. There is a possibility to prolong this interval by 20 days, if the dispute proves to be extremely complex. The trader has the right to justify his point of view regarding the complaint in 15 calendar days time from its communication, as well as the right to receive from the ADR entity the arguments and the evidence presented in the complaint.
The result of the ADR procedure shall be communicated through an alternative dispute resolution notification. Before accepting the suggested solution, you have 15 calendar days to voice you agreement or disagreement with the result of the ADR procedure. The result of the ADR procedure is not binding if only you do not or only the trader does not accept the suggested solution.
In case the trader does not accept the suggested solution, the ADR entity must inform you, through its decision, about the administrative and judicial means of appeal that you can use to settle the dispute.
Using the ADR mechanism of imposing a solution involves agreeing with the binding nature of the solution and with the impossibility of withdrawing from the procedure. The solution given by the ADR entity is mandatory for the trader. The ADR entity issues a motivated decision for the solution, and if it is not appealed in 15 days time it becomes an enforceable title.
If the dispute is related to the banking field, it can be solved exclusively through ADR procedures by the ADR Centre. Examining and solving the dispute forwarded to the ADR Centre is a task for the conciliator registered in the Conciliators Panel, chosen by you and accepted by the plaintiff banking institution. The examination ends in releasing a decision. As a part of his tasks, the conciliator must not receive any advice from you or from the banking institution and must apply the rules of procedure adopted by the Managing Board for each of the ADR procedures that are within the prerogative of the ADR Centre. If you have chosen the ADR mechanism of imposing a solution, the conciliator becomes an arbiter.
The list of ADR entities can be found on the websites of the respective entities, consumer associations, as well as on the website of the Ministry of Economy, Commerce and Business Relations, which is the authority that verifies if the ADR entities fulfill the quality requirements and who forwards the ADR entities list to the European Commission.
If you are dealing with a cross-border consumer dispute you can contact the European Consumer Centre in Romania (ECC Romania), which can offer information regarding the ADR entities that are based in other member states and have the prerogative to solve the dispute.