Platform to Business Services

Using Wolf von Kumberg’s experience as Assistant General Counsel, we asked what advice he would give to Online Platform Providers.

Here are his main pieces of advice:

Article 12 – this article speaks to the naming of at least two mediators but there is scope to utilise a mediation provider. The benefit of using a mediation provider is gaining access to a larger panel of mediators who will have:

• Greater depth and breadth of experience in handling different types of disputes
• Greater capability to conduct mediations in terms of time and geographic location
• Greater scalability – ability to handle a large number of cases. It is unclear how many disputes will arise from the P2B Regulation and there may be a need to scale up very quickly. Using a mediation provider under Article 12 allows you to do this seamlessly.

Article 11 – the need to install a complaint handling process. Online Platform Providers should seek to utilise the complaints handling mechanism in conjunction with mediation to bring about a more effective and expedited resolution of any dispute which may arise.

The P2B Regulation provides provision for the business, business associations and potentially other bodies to bring claims against the Online Platform Provider. Therefore, it is important to have a clear and effective complaints handling process of which mediation should play a pivotal part.

The P2B Regulation requires providers to name two mediators who can be called upon to help resolve disputes. However, from the conversations we have had with platform providers, those two mediators will need to be able to cover a range of disputes, including: property, intellectual property, sale of goods & services, retail and banking - depending on the nature of the company.

Furthermore, you will need access to mediators operating geographically across Europe and able to cover mediate in multiple languages.

CEDR has a panel of 150+ quality assured mediators to resolve disputes at all levels of complexity and claim value. Furthermore, our mediators operate in 11 European countries and cover 15 of the EU's languages.

We provide a range of mediation solutions depending on the type of the dispute. These include:

• telephone and video conference mediations;
• fixed-time period mediations;
• fixed-fee mediations;
• standard 1-day mediations; and
• Bespoke mediations for complex, multi-party and or multi-jurisdictional disputes.

We have a team of dedicated client relationship associates to guide you and your business customers through the process.

Naming CEDR as your mediation provider gives you the flexibility, scalability and access to mediation services across the complete spectrum of industries and dispute types.

Online Platform Providers can comply with Article 12 by simply naming CEDR in their terms and conditions.   You can do this by referring to CEDR as your mediation provider.  Alternatively, you can include the following CEDR model clause such as the one set out below.

However, as an Online Platform Provider you may wish to contact CEDR to design a mediation scheme for your business users.  The advantages to designing a platform specific scheme are:

• Adapted Mediation process with its own Agreement and Procedures;
• Specialist Mediator Panel with mediators who can provide the necessary business-to-business experience, geography reach and language capabilities;
• Clear Fee structure appropriate to the value and issues in dispute; and
• Frictionless administration through CEDR’s case management system and experienced team of client relationship associates.

Every year CEDR publish a number of model mediation clauses to be included in contracts.  These can be found on our website here. 

Alternatively, please find set out below a model mediation clause tailored to P2B disputes:

‘If any dispute arises in connection with this agreement, the parties agree to first try to resolve the dispute through the complaints procedure published herein.

If the dispute is not wholly resolved through the complaint’s procedure, then the dispute may be referred at the discretion of the [business user] to the Centre for Effective Dispute Resolution (“CEDR”) for mediation. The Parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 [working] days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (‘ADR Notice’) to the other party[ies] to the dispute, referring the dispute to mediation. A copy of the referral should be sent to CEDR.

[If there is any point on the logistical arrangements of the mediation, other than the nomination of the mediator, upon which the parties cannot agree within 14 [working] days from the date of the ADR Notice, where appropriate, in conjunction with the mediator, CEDR will be requested to decide that point for the parties having consulted with them.]

To learn more about mediation, its benefits as well as practical insight, visit our dedicated page here.

CEDR has publicly available model contract clauses and documents to assist with and support your mediation. They can be accessed here.