Participation as a Framework for Analysing Consumers’ Experiences of Alternative Dispute Resolution (ADR)
| DOI | http://doi.org/10.1111/jols.12224 |
| Author | Naomi Creutzfeldt,Chris Gill,Jane Williams,Nial Vivian |
| Published date | 01 June 2020 |
| Date | 01 June 2020 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, NUMBER 2, JUNE 2020
ISSN: 0263-323X, pp. 271–97
Participation as a Framework for Analysing Consumers’
Experiences of Alternative Dispute Resolution (ADR)
Jane Williams,∗Chris Gill,∗∗ Naomi Creutzfeldt,∗∗∗
and Nial Vivian∗∗∗∗
This article argues that an analytic framework based on participation
is useful for analysing consumer experiences of alternative dispute
resolution (ADR), providing a complementary approach to analyses
drawing on procedural justice theory. The argument is developed
by applying McKeever’s ‘ladder of legal participation’ (LLP)1to a
qualitative data set consisting of interviews with United Kingdom
consumers. The article concludes that applying the LLP in the
consumer ADR context results in novel empirical and theoretical
insights. Empirically, it demonstrates that – even in low-value and
transactional disputes – consumers expect high levels of participation
from ADR. Theoretically, it argues that the LLP complements existing
approaches by providing an unifying lens through which to study
consumer experiences by emphasizing the importance of participation,
not only as a process value but also in shaping outcomes highlighting
the distinction between genuine and tokenistic provision of ADR.
∗Queen Margaret Business School, Queen Margaret University, Edinburgh,
Scotland, EH21 6UU
∗∗ Law School, Stair Building, 5–9 The Square, University of Glasgow,
Glasgow, Scotland, G12 8QQ
∗∗∗ Westminster Law School, College of Liberal Arts and Sciences, Little
Titchfield Street, University of Westminster, London, W1W 7UW, England
∗∗∗∗ Independent researcher
Wewould like to thank Citizens Advice, who funded the project leading to this publication.
We would also like to thank the anonymous article reviewers for their very helpful
comments on an earlier draft of this article.
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
INTRODUCTION
There is a need to develop novel theoretical1approaches for understanding
consumer experiences of ADR. In part, this is because recent evidence
suggests that procedural justice theory – the dominant paradigm for analysing
user experiences of dispute processes – has limitations in this setting.2In
particular, there are suggestions that outcome effects are especially important
in relation to consumer disputes and that procedural fairness is less important
in determining decision acceptance and legitimacy than in other settings.3
There are also indications that consumer ADR may not be meeting consumer
expectations4and that consumers whose complaints are not upheld are less
likely to view consumer ADR as legitimate compared to the courts.5Giventhe
significant growth of ADR6– recently accelerated as a result of the European
Union’s Directive on Consumer Alternative Dispute Resolution7– there is an
increasingly pressing need to understand how consumers experience ADR and
what accounts for the gap between what they expectand what they get from it.
In this article, we explore how the application of participation as an analytic
framework might throw light on these issues.
Participation is the ability of individuals to take part meaningfully in
decisions affecting them.8Why focus on participation? First, participation
has traditionally been viewed as normatively and instrumentally desirable
1 G. McKeever, ‘A Ladder of Legal Participation for Tribunal Users’ (2013) PublicLaw
575.
2 N. Creutzfeldt, Ombudsmen and ADR: A Comparative Study of Informal Justice in
Europe (2018).
3 N. Creutzfeldt and B. Bradford, ‘Dispute Resolution Outside of Courts: Procedural
Justice and Decision Acceptance among Users of Ombuds Services in the UK’
(2016) 50 Law and Society Rev. 98; Department for Business, Energy and
Industrial Strategy (BEIS), Resolving Consumer Disputes: Alternative Dispute
Resolution and the Court System (2018), at <https://assets.publishing.service.gov.
uk/government/uploads/system/uploads/attachment_data/file/698442/Final_report_-
_Resolving_consumer_disputes.pdf>.
4 S. Gilad, ‘Accountabilityor Expectations Management? The Role of the Ombudsman
in Financial Regulation’ (2008) 30 Law and Policy 227; N. Creutzfeldt,
Trusting the Middle-Man: Impact and Legitimacy of Ombudsmen in Europe
(2016), at <https://www.law.ox.ac.uk/sites/files/oxlaw/ombuds_project_report_nc_2.
pdf>; C. Gill et al., Gaps, Overlaps, and Consumer Confusion: A Consumer
Perspective on the UK’s Alternative Dispute Resolutions (ADR) Landscape
(2017), at <https://www.citizensadvice.org.uk/Global/CitizensAdvice/Consumer%
20publications/Gaps%20overlaps%20consumer%20confusion%20201704.pdf>.
5 BEIS, op. cit., n. 3, p. 48.
6 Gill et al., op. cit., n. 4.
7 Council Directive 2013/11/EU on alternative dispute resolution for consumer disputes
and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC [2013] OJ L
165/63 (Directive on Consumer ADR).
8 R. Moorhead et al., Just Satisfaction? What Drives Public and ParticipantSatisfaction
with Courts and Tribunals: A Review of Recent Evidence (2007) Ministry of Justice
Research Series, p. 45.
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
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