The ADR directive: Designed to fail? A hole-ridden stairway to consumer justice

Abstract

The European legislator adopted the new Alternative Dispute Resolution (ADR) Directive with an aim to create an additional, attractive stairway to consumer justice. As such, the ADR Directive intends to encourage more consumers to invoke their consumer rights and thus strengthen consumer law enforcement. However, in order to realize the Commission’s goals, this stairway must also be able to be negotiated (i.e., it must be effective) and it must actually lead to consumer justice (it must be fair). This article questions whether the ADR Directive’s regime is appropriately designed to achieve these results and, consequently, to entice more consumers to claim their rights in the future. This assessment is conducted considering the potential impact of the ADR Directive on consumer behaviour, with respect to mitigating their ‘biases’ against the effectiveness of ADR procedures and their perception of fairness of ADR entities. I examine whether the ADR Directive is likely to eliminate or at least diminish such biases more than in the case of judicial procedures. Throughout this article, based on the analysis of consumer attitudes and beliefs towards ADR, I indicate where the ADR Directive fails to provide more or better regulation, arguing that, if these shortcomings are not corrected within national implementation regimes, the result may be that the ‘ADR stairway’ will contain holes that consumers may fall through during their climb towards justice.