Consumers and banks in dispute : from litigation to mediation : how outlier consumers and banks in Hong Kong engaged in dispute resolution in the wake of GFC

Abstract

This paper presents a study of consumers and banks in dispute and undergoing dispute resolution, in particular, mediation in the years 2008 to 2013 following the Global Financial Crisis (GFC). The central question of this study was whether mediation provided a level playing field for consumers to engage with financial institutions in the resolution of their disputes? The study, though based on the results of a small qualitative study conducted in Hong Kong, shows that during this period, when consumers and banks were in dispute, the path to mediation was anything but straight forward and anomalies were at play. Despite the creation of scheme mediation, for these consumers, at least, it was not an option open to them and they had to litigate to get to mediation. For both consumers and banks, mediation represented a new milestone in the resolution of their dispute, a substitute for litigation – a kind of mini-trial, towards which the consumers and banks engaged in a war of attrition to pressure each other into giving in or settling on their terms. On the one hand, the consumers who took on the banks appeared to be a minority – outliers, who were determined, resourceful and adversarial but prepared to game the system to pursue the resolution of their dispute. The banks, on the other hand, when defending against or pursuing consumers, simply invested sufficient resources into dispute resolution in an attempt to overwhelm their adversary. These disputes seem to reveal the emergence of a more competent and combative consumer whose engagement in mediation in its own way resembles that of the better resourced corporate repeat player, albeit without the same resource advantages and bargaining endowments. In short, David resembled Goliath in an asymmetric disputing landscape. The playing field might not be even, in light of the resources required to remain in the disputing game, but occasionally the consumer will come out on top, though not with ease, as the outlier consumers did in this research.