ICANN Ombudsman Blog Creating Dialogue Affirming Fairness

August 30, 2012

Reflections After My First Year as the ICANN Ombudsman

Filed under: Uncategorized — Chris LaHatte @ 7:30 pm

It is now just over a year since I commenced as the new ombudsman at ICANN, and therefore time to reflect on what I have learned and what I have achieved. I will of course prepare an annual report in the usual way, and this post is an informal reflection.

One of the features of my appointment has been a greatly increased number of complaints. Regrettably a significant number are matters where I do not have jurisdiction. There is obviously a need for assistance for many of these people, who often do not understand the complexities of the domain name structures and distinctions between all of the various stakeholders. My background as a lawyer does prompt me to want to assist people who have a need, but I am limited by the very specific jurisdiction in article 5 of the ICANN bylaws and my framework.

 

First I should share some statistics.

2011-2012 statistics

A total of 239 complaints Compare this to the previous year as below

2010-2011

Or 19 in total

The change in the number of complaints is an interesting development. To be honest, I am unclear why there has been such a rapid growth, although I am pleased that there is continued confidence in the office. This has meant an adjustment upwards in the time spent, because even the non-jurisdictional complaints need to be carefully considered. An interesting trend is the number of complaints from outside the United States is also increasing.

I have noticed that in certain circles it is common practice to criticise ICANN, and on occasion I have suggested that if they are so unhappy with ICANN, then they should make a formal complaint to me. I do not know if this has actually lead to complaints, although I hope that the message is out that my office is available.

It is difficult to comment about complaints in too much detail because of the need to protect confidentiality. However a common thread in some supporting organisations is too much attention to the rules and procedure and not enough to the tasks and functions. This can be very distracting for those who want to make a contribution to policy but are prevented from doing so because of the issues over such matters as elections, process for discussion at meetings and conflict over which rules should apply. There is merit in continuing with the projects presently underway with the RALOs to harmonise rules of procedure, and I would add that it is important to also simplify such rules, and concentrate on plain English. The use of plain English as an additional advantage because it becomes easier to translate, and our translations should equally be in plain French, Chinese or other languages. It would be unfortunate if our rules and procedures proved a barrier to participation.

Some aspects of working as the ICANN ombudsman can be wonderful. At the ICANN meetings I have met people from so many different countries and cultures, and I have also tried to share with people something of the New Zealand style. We tend to be very informal and not concerned about differences in social standing. I have also had the opportunity to meet our New Zealand team from Internet NZ and the Domain Name Commission, and I am proud to say that I think New Zealand stands tall within ICANN.

 

August 2, 2012

Arbitrators and Mediators Conference Wellington New Zealand 2-4 August 2012

Filed under: Uncategorized — Chris LaHatte @ 4:03 pm

I am at the annual conference of the New Zealand Arbitrators Institute of New Zealand in Wellington New Zealand. This is always a full conference of seminars and training is all forms of dispute resolution. It has an international flavour as the conference is being run at the same time and venue with Advisory Council of the United Nations Convention on the International Sale of Goods, where both arbitration and mediation are strongly promoted as the tools for dispute resolution.

There are many speakers and presenters  http://www.aminz.org.nz/Section?Action=View&Section_id=192 and I am looking forward to the presentations on Multi Party mediations and Cultural issues in mediation. We also have a session on the New Zealand Ombudsman offices which is chaired by the New Zealand Ombudsman Dame Beverley Wakem.

On Friday we opened with a traditional Maori welcome, as is the custom in New Zealand. The formal opening was an address from the New Zealand Minister of Justice Judith Collins, who talked about reform of the family Law practice and procedure, with a new emphasis on compulsory mediation before cases are argued before a judge. This was received enthusiastically by the large number of mediators in her audience. I asked a question of her about credentialling, because our Institute has a strong emphasis on ensuring that members are properly trained. It appears likely from her answer that the approved mediators will be required to have appropriate training.

The next two sessions were directly useful to my role as the ICANN ombudsman. Helen Shurven from Australia presented a fascinating paper about the mediation used to settle customary land disputes in Australia and the techniques and difficulties involved. It is very common to have a large number of people present from the indigenous groups, and of course there are government representatives, and often representatives from landowning and mining interests. The logistics of organising a large number to travel to often remote areas of Australia are very costly. But the process is worthwhile, and worth spending the money, because it works. There have been a significant number of settlements reached, but interestingly, they have observed the similar process of negotiation with indigenous people in New Zealand, through the Waitangi Tribunal.

This was followed by a session on why some cultural groups do not complain. Pele Walker from the Human Rights Commission facilitated a session to discuss why Pacific Island people in New Zealand have a very low complaint level to the commission. She discussed the cultural inhibitions, and the need to be most careful in understanding the different cultural values, within the context of Samoan culture in particular. Within ICANN we have many cultural groups and very diverse approaches to discussion and to collective decision-making. Learning how Pacific Island and Samoan people deal with conflict is most important, because it reminds us that the European approach is just another way of dealing with conflict and by no means the only way.

The sessions on the afternoon of Friday were on different understandings of issues within workplace conflict mediation and how the different stories and perceptions of differences can be interpreted. This was presented by the Auckland University mediator, Barbara McCulloch, who is an organisational ombudsman within the University (although she is not allowed to call herself an ombudsman). This was followed by an interesting presentation on recent cases about privilege and without prejudice communications within the context of a mediation agreement. While the law is indigenous to New Zealand, there is a growing awareness that we have to reflect international trends in interpretation of privilege.

Saturday opened with a provocative presentation by a mediator from the United Kingdom, Tony Willis. He was announced as the top commercial mediator in the world, and has an awesome CV and enormous experience. He was interested in the place of commercial mediation within the civil justice system, and has a very pragmatic view that mediation is just another way of resolving disputes rather than the answer to everything. He cited some of the recent research from Dame Hazel Genn, who has published extensively on problems within the civil justice system due to a number of factors such as the impact of a ever increasing criminal workload for the courts tightening resources for the civil justice cases, problems with the civil procedure rules and in particular the explosion of disclosure and discovery rules. Tony Willis is of the view that a mediator is just a mediator and use of titles such as transformative or facilitative or evaluative limits the tools which a mediator can use. His experience, he frankly concedes, is primarily commercial and international mediation. The point of those mediations is often simply money. Some of the other purposes of mediation for family or community issues may well require other approaches, but I do agree that mediators must look at such labels, as resources rather than restrictive titles.

The afternoon session was from my New Zealand Ombudsman colleagues.  The theme of the panel discussion was “Ombudsman How are Global Trends Reflected in New Zealand? The leading speaker was the New Zealand Parliamentary Ombudsman, Dame Beverley Wakem, followed by Karen Stevens, Judi Jones and Deb Battell, who are respectively the  Insurance and Savings Ombudsman, Electricity and Gas Commissioner and Banking Ombudsman. It is always valuable to see how my colleagues approach their work on a local level and how they ensure that they meet international standards of practice in ombudsmanship.

We concluded with an address by the Honourable Sir Geoffrey Palmer SC, who discussed international mediation. Ultimately his conclusion is that it is very valuable when the parties cooperate, but he cited a number of areas such as International whaling and the current Syrian conflict where mediation just has not worked.

I like to think that the New Zealand Arbitrators and Mediators Institute runs one of the best conferences in the world in terms of scholarly papers, deep and interesting questions of speakers, and importantly the fellowship of our members. Our executive director Deborah Hart excels herself with each conference, and it is a valuable part of my year for the learning and fellowship.

 

 

 

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