One of the features of the debate on accountability has been considerable discussion about how to resolve disputes within ICANN. As the ICANN ombudsman it is my role to look at issues of unfairness within the ICANN community and to apply alternative dispute resolution techniques to any issues which are brought to me. This is of course based specifically on my bylaw and on the ombudsman framework, and deals specifically with unfairness and delay issues.
The debate has centred on whether the present other accountability structures, of reconsideration by the ICANN board and of the Independent Review Panel provide appropriate methods for the community to resolve disputes with ICANN and within the community. Regrettably there has not been much debate about some of the more basic issues which need to be resolved in designing a dispute resolution systems based on the new accountability structure.
The first thing which needs to be done is to try to identify the sources of conflict within ICANN and the community, and to understand why those problems arise. It is important to look at the structures and systems and relationships and any “conflict cultures” within the organisation. In considering these issues I acknowledge the work of Kenneth Cloke and Joan Goldsmith, who have written extensively on workplace and organisational disputes, and on management of those disputes and designing systems to improve the capacity for conflict prevention management and resolution.
My thinking on this arose after attending training on dispute resolution management design with Kenneth Cloke and Joan Goldsmith.
The first matter to consider is how conflicts arise within ICANN, and how these are managed. ICANN of course has a highly skilled and experienced legal team, with extensive litigation experience. But the point that I want to emphasise is that we need to understand how conflict arises within the community, and how it is managed. We also need to consider the various stages of entry into any dispute management system including any escalation mechanisms and final resolution systems.
Perhaps more importantly, we need to think about what sort of disputes are going to be dealt with within ICANN. There are some obvious matters where this would not be appropriate, such as employment contract disputes, criminal issues and lawsuits from outside the community. This is not of course a complete list. The office of the ombudsman has had jurisdiction over numbers of matters which are set out both in the ombudsman bylaw and in the Ombudsman Framework. But in a wider sense, issues that need to go to reconsideration by the board or independent review panels have been discussed in general terms, but there is as yet no general description of the types of issues which will be considered suitable for the new accountability mechanisms. It is important to have a framework for the type of disputes which are to be dealt with within ICANN as opposed to litigation. Many of the submitters and participants in the discussions have expressed clear views that court litigation must be avoided if at all possible. Obviously there will still be some litigation because ICANN remains a body incorporated under the law of the state of California. For some purposes there will be always a submission to those courts and to the federal courts of the United States.
So a discussion needs to take place, framing and scoping the disputes to be dealt with by these new accountability methods.
Once the discussion as to the scope and range of disputes has reached some agreed description, then a procedure needs to be designed which will be readily accessible by the community without excessive procedural hurdles and the need for legal teams to prepare any case. The ombudsman level is informal in any event and does not have any particular procedure other than a complaint made to the office of the ombudsman, which can be oral, written, by telephone or email or using the case management system complaint form. So the entry level is simple and easy. The procedure for processing the complaint is also informal.
At the reconsideration and independent review panel level, there needs to be more sophisticated procedure. For example, will there ever be cases for reconsideration where parties can make oral applications and give oral evidence? Will those decisions be subject to appeal, and what are the boundaries of an appeal? Will appeals be limited to a rehearing or can new issues be raised? What are the limits on submissions? If this goes to the independent panel proposed, similar issues arise such as the use of oral evidence at hearings, whether this should be entirely based on papers filed or some other procedure?
The final objective as to procedure should be something that avoids “gaming” by use of unduly complex procedure. Time limits should be discussed, but also with the flexibility so that when human errors arise, these are not used to strike out otherwise meritorious claims. On the other hand, there should be times including times for the issue of a final IRP decision, that enable parties to resolve disputes within a reasonable time.
At the ombudsman level, mediation is emphasised as the principal dispute resolution tool. There is no reason why this cannot be used at the reconsideration and IRP levels however. It may not be appropriate for the ombudsman to act as the mediator for those systems, given that the ombudsman may have had previous involvement with the disputes. But there are many suitable mediators available who could be appointed when needed.
I have written this blog to raise awareness rather than to make submissions. I am concerned that much of the discussion about the proposed accountability mechanisms has not considered structures, systems and relationships, and issues such as accessibility and the scope of any such accountability mechanisms.