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Monday, March 30, 2009

 

Compliant Alternative to FOSThe provisions to the left explained in plain English
Basically, the law and the DISP rules shown here provide for situations where, WITH THE COMPLAINANT'S CONSENT, the complaint can be dismissed, or referred to a 'comparable independent complaints scheme or dispute-resolution process'.

Yes, but what does this mean?
I have a letter from FOS to one of my clients which specifically stated that they were dismissing his case because it had been dealt with by the courts. I have further letters from clients in which a complainant has threatened court action and FOS have told the complainant that unless they stay procedings, they will dismiss the complaint. So, in practice, if FOS found out that a comparable independent complaints scheme was also dealing with a complaint they would dismiss the complaint.

Similarly, if you brought a civil or criminal action against a complainant in relation to a complaint that was being considered at FOS, FOS would have to dismiss the complaint. But, we want to get into a position where the complaint never 'goes' to FOS.

How to do this?
Easy - use an ouster clause.

What is this?
This is an ADR clause (a clause which states that you will use an informal process such as mediation to resolve a dispute if one arises, and NOT FOS). You include the clause in your existing terms of business and ask your clients if they will agree. For those of you that are technically minded, and have read the legislative provisions above, you will see that provided the client consents, there is NOTHING to prevent this. BUT, consent is KEY.

There are two issues to be considered for your business in practice:

1. Do you intend to try and get all your clients, with whom you have already done business, to accept the 'alternative'?; or

2. Are you going to use the system for complaints going forward from when you add the clause.

Scenario 1

You will need to write out to all your clients with whom you have already done business, sending them a copy of your terms of business including the new clause. Then, IF a complaint arises which refers to business already written, and they have accepted the new variation, in writing, and signed to say so, your complaint should be referred to us, or any other firm that represents a 'comparable independent dispute resolution body'.

Scenario 2

If you want to use the clause to deal with complaints going forward, leaving complaints about previous business to be dealt with by FOS, you just issue new terms of business to clients when writing the business, as you would do normally, and ask them to sign, as normal.

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