Dispute resolution process in detail
There are three main stages in our process that a dispute may go through after we receive it. These are:
As a first step, we refer the dispute to the financial services provider and request that it respond to us and to the applicant.
The amount of time that the financial services provider has to respond depends on the type of dispute and what’s happened previously, including whether the financial services provider has had an opportunity to complete its internal dispute resolution process.
For most disputes, the financial services provider has up to 45 days to complete its internal dispute resolution process. Therefore, if no complaint has been made to the financial services provider before the dispute is lodged with us, we need to allow this amount of time for the financial services provider to respond.
Where the financial services provider has already conducted its internal dispute resolution process, a shorter timeframe of 21 days applies.
During this period, the financial services provider may seek to resolve the dispute directly with the applicant. If the dispute is not resolved, the financial services provider will be asked to respond outlining its position to us and to the applicant.
If the Financial Ombudsman Service registers a dispute and sends it to the FSP, does this mean the Financial Ombudsman Service will deal with the dispute if the FSP cannot resolve it?
Not necessarily. When we register and refer a dispute, we don’t conduct a detailed assessment of whether it falls within our jurisdiction under our Terms of Reference. If the financial services provider does not resolve the dispute within the Registration & Referral stage, we will then assess our jurisdiction to consider the dispute.
If a dispute is not resolved during the Registration & Referral stage, it will progress to our Case Management stage.
If there are issues with whether we have jurisdiction to consider the dispute, we will review these at the beginning of the Case Management stage. Otherwise, the dispute will be allocated to a case owner who will commence our investigation process.
As a first step, the case owner will review all of the information and contact the applicant and the financial services provider, to clarify the issues and/or to request any further information. The case owner may also try to resolve the dispute by:
- a conciliation conference, or
- providing a view on the merits of the dispute
What is a conciliation conference?
Conciliation is an informal process which allows both parties to a dispute to openly identify and discuss the relevant issues and move the dispute towards resolution. The conciliator is a professionally trained employee of the Financial Ombudsman Service. The conciliator facilitates discussion and helps both parties to:
- equally put forward their points of view
- gain a better understanding of both their issues, and
- help generate options for a resolution.
Most conciliation conferences will be conducted by teleconference. Parties will be able to speak directly to the conciliator and the other party. If the dispute resolves at conciliation, we will record the outcome and details of any settlement reached. We will take notes of the discussion. FOS may refer to these notes if we go on to look at the dispute further.
For more information, please refer to our Guide to Conciliation Conferences.
What is negotiation?
Negotiation is a less structured process than conciliation. We will discuss the dispute with the parties to see if an agreement can be reached that resolves the dispute.
What happens if the dispute is resolved by agreement?
If either party advises us that the dispute is resolved, we will confirm with both parties:
- the dispute has been resolved; and
- details of the resolution.
What happens if the dispute cannot be resolved by agreement?
If the dispute cannot be resolved by agreement, we may take other steps to assist in resolving the dispute. These steps may include:
- requesting further information, if we consider this additional information would help with further attempts to resolve it, and/or
- expressing a view about the merits of the dispute which may encourage the parties to reach agreement. This may be in the form of a written Recommendation as defined in our Terms of Reference or it may be provided over the phone.
However, if these strategies are inappropriate or if the dispute remains unresolved, the dispute will be resolved by a decision.
If a dispute is not resolved by agreement between the parties, then it will be resolved by a decision about the merits of the dispute. The decision will be in the form of a Determination and will take into account all the information provided by the parties. All decisions will be based on what is fair in all the circumstances, taking into account the law, any applicable industry codes of practice, as well as good industry practice.
What is a Determination?
A Determination is a final decision on the merits of a dispute, made by:
- an Ombudsman; or
- a Panel of three decision-makers chaired by an Ombudsman.
Before a Determination is made, we will:
- advise the parties.
The Ombudsman or Panel will take into account all information provided by the parties during our investigation of the dispute, the law, any applicable industry codes of practice, as well as good industry practice. If a Determination is made by a Panel in relation to a medical indemnity dispute, the other members of the panel will be a medical representative and a medical indemnity insurer representative. In other disputes the members of the Panel will be a consumer representative and an industry representative, both with relevant experience. All Ombudsmen and all Panel members are appointed by the Financial Ombudsman Service Board on the basis of their objectivity, qualifications, experience and relevant personal qualities, and their ability to make decisions on the merits of financial services disputes.
When will a Determination be made by a single Ombudsman and when will it be made by a Panel?
We will decide whether a dispute should be determined by a single Ombudsman or by a full Panel, based on a range of factors including the nature complexity and significance of the dispute, any expertise required and where this can best be found, and other considerations.
Can a party appeal from a Determination?
A Determination is a final decision on the merits of a dispute. There is no further “appeal” or review process within the Financial Ombudsman Service. An Applicant has the right to accept or reject the Determination within 30 days of receiving it (or within any additional time we have allowed). If the Applicant accepts the Determination, then it is binding on both parties. If the Applicant does not accept the Determination, it is not binding on the FSP and the Applicant may take any other available action against the FSP, including action in the courts.
The FSP cannot accept or reject the Determination.
What must an FSP do if there has been a binding Determination requiring action by the FSP?
If the Determination requires action by the FSP and it is accepted by the Applicant, then the FSP must implement the Determination. We ask the Applicant to sign a Confirmation of Settlement accepting the Determination, in full and final resolution of the dispute. An FSP can ask the Applicant to sign a Deed of Release in addition to the confirmation of settlement, but only if it provides us with a copy of the Deed within 14 days of being told the Applicant has accepted the decision. The Deed must also be consistent with the Determination