Access to Justice, Alternative Dispute Resolution (ADR), and consumer vulnerability in the European energy sector

Is Alternative Dispute Resolution (ADR) resulting in more accessible justice? This project will address this question. Specifically, it examines whether ADR provides access to justice for vulnerable consumers in the European energy market. This location is ideal for the research. Consumer disputes are frequently subject to ADR: in 2008, 530,000 cases were referred to ADR in Europe. And yet, only 43% of consumers report that ADR is easy to use. In this context, some have questioned whether ADR is meeting consumer needs. At the same time, debate about access to justice has shifted from a focus on demographic groups (e.g. the poor) to a broader focus on vulnerability. This more challenging concept is the focus of this research.

There are compelling reasons for focusing on the energy sector. First, it is a sector where the European Union has mandated ADR as a means of promoting access to justice. Second, energy consumers are particularly prone to detriment, with 8.9 million problems experienced in the UK in 2015. Third, the consequences of detriment are severe, with 10.8% of the EU's population living in fuel poverty. Fourth, energy consumers are particularly at risk of vulnerability. Fifth, ADR is an explicit means through which policymakers are seeking to tackle vulnerability. This sector is, therefore, an important site at which access to justice, ADR, and vulnerability intersect.

The research builds on existing scholarship. Its major contribution will be to literature on the role of ADR in access to justice. ADR proponents say it is cheaper, quicker, more accessible. Critics question how accessible it is, and whether it provides access to settlement, not justice. The research will also contribute to literature on dispute system design (DSD) and consumer vulnerability, by exploring how ADR design affects access to justice for the vulnerable. In addition, the research will build directly on the applicants' recent work on ADR: Creutzfeldt's ESRC Fellowship and Creutzfeldt and Gill's ESRC Impact Acceleration Award.

The research will use mixed methods and investigate six European countries with significant national variations in policy and practice. This design has been developed in partnership with the National Energy Ombudsman Network, which has guaranteed access for research. The applicants have recently conducted commissioned research for energy ADR schemes: strong relationships of trust and cooperation will ensure impact is achieved. If successful, the ultimate outcome of the research will be an enhancement in access to justice for vulnerable consumers in the energy market and beyond.

All of us will be vulnerable at some stage in our lives and all of us are likely to encounter problems that require redress. Our research will, therefore, have an impact upon the public, as well as specialist audiences such as ADR bodies, policymakers, regulators, consumer advisers, and energy providers.

Public: This project's ultimate outcome will be that access to justice is enhanced and measures to ensure that vulnerable people are provided for in relation to ADR are developed. This will improve the functioning of the energy market, leading to fuller participation, and resulting benefits in terms of social justice and economic development. As such, all members of the public will potentially benefit from the research. The applicants' intention to create commercial training and consultancy services will also have broader societal and economic impacts, through income generation, knowledge exchange, and the development of innovative practices in relation to working with vulnerable consumers in the energy market and beyond.

ADR providers: ADR providers are currently struggling with the problem of widening access and acting on consumer vulnerability (e.g. vulnerability has been the subject of a recent Ombudsman Association conference). ADR providers will be amongst the prime beneficiaries of the research, which will provide empirical data on current practices and on new policies that can be developed to improve access to justice for the vulnerable. Providers will be actively involved in the project and will co-produce an online toolkit, as well as pilot the policy recommendations of the study. In future, providers in the wider ADR community will be able to access the specialist expertise the applicants will have developed by purchasing training and consultancy services. Ultimately, the project will give ADR providers an evidence base, a toolkit, and an advisory service to support enhancements in access to justice for their vulnerable consumers.

Policymakers, regulators, and consumer advisers: This project will provide policymakers, regulators, and consumer advice organisations with data that will allow for the future development of evidence-based policy. In particular, understanding how dispute system design and broader institutional contexts affect access to justice for the vulnerable will allow legislators and regulators to develop policies based on consideration of comparative best practices across Europe. A particular gap at present is in exploring how broader systems of consumer protection can contribute to the accessibility of redress schemes for vulnerable people. The indicators of access to justice and vulnerability that will be developed as part of the research will be especially helpful for policymakers (and others) seeking to evaluate the effectiveness of ADR schemes.

Energy providers: Energy providers will benefit from the research by gaining a better understanding of their consumers and their journeys through the redress system. Although the accessibility of internal redress processes is not considered explicitly in the research, many of the findings will be transferable to other complaint mechanisms. As energy providers come under increasing regulatory pressure to make provision for vulnerable consumers, the link between vulnerability and redress is one that will grow in importance. Energy providers will therefore benefit from data about the vulnerability of their consumers and from the toolkits developed in this research. The applicants also plan to consult with providers to establish whether further commercial training and consultancy opportunities may exist in this area.