ICANN Ombudsman Blog Creating Dialogue Affirming Fairness

February 19, 2012

IOI Conference Wellington New Zealand November 12–16, 2012

Filed under: Uncategorized — Chris LaHatte @ 2:16 pm

It will be great to have a conference so close to home. As I live in Wellington, I can catch a bus to the venue!

It is of course part of my function to reach out to my colleagues, and I look forward to welcoming them to my country.  There is an exciting programme and I look forward in particular to the Sharpening Your Teeth course run by André Marin, the Ombudsman from Ontario Canada.

Our New Zealand Ombudsman will host the conference, and I am proud that our Parliamentary Ombudsman are world leaders in the practice of Ombudsmanship.

One of them, has recently been in news over an investigation about school bullying in a local High School. This was a wide ranging investigation and involved the school, the Education Review Office (who are the auditors of school performance in New Zealand), and  the Ministry of Social Development. The report was constructive, seeking to provide guidance for schools and the government agencies on how to cope with a very difficult and controversial issue. There was some subsequent publicity that the Education Ministry did not appear to want to adopt his recommendations, and he made it clear subsequently that he was making suggestions and not telling the government agencies that they must make changes. This illustrates the moral suasion aspect of an Ombudsman’s power, that we cannot force change but only try to persuade.

February 13, 2012

Cultural Differences In Mediation

Filed under: Uncategorized — Chris LaHatte @ 6:03 pm

In an interesting case from Hong Kong, Gao Haiyan And Another v. Keeneye Holdings Ltd And Another [2011] HKCA 459; CACV79/2011 (2 December 2011)the Hong Kong Court of Appeal has recognised the importance of cultural differences and practice in the course of a mediation. The decision was about enforcement of an arbitral award in Hong Kong, and the High Court had declined to enforce the award, holding that the award was tainted by bias. the Court of Appeal overturned this and discussed the cultural differences between mediation in the English common law jurisdiction of Hong Kong and different ways of mediating in the PRC and in particular said

“With respect, although one might share the learned Judge’s unease about the way in which the mediation was conducted because mediation is normally conducted differently in Hong Kong, whether that would give rise to an apprehension of apparent bias, may depend also on an understanding of how mediation is normally conducted in the place where it was conducted. In this context, I believe due weight must be given to the decision of the Xian Court refusing to set aside the Award”

So we are reminded that cultural differences must be taken into account in the way a mediation is conducted. For the Ombudsman, dealing with so may cultures, I must always be aware of this and alert to the consequences.


February 12, 2012

Non violent communication

Filed under: Uncategorized — Chris LaHatte @ 12:45 pm

Last Friday I attended a seminar on non violent communication. In many ways this is a complementary learning process to the paper written by Frank Fowlie, available on my site, about respectful communication. See  http://www.icann.org/en/ombudsman/respectful-communication-en.htm

The Center for Non Violent Communication sent one of their trainers, Jorge Rubio-Vollert, to New Zealand for a New Zealand Law Society sponsored presentation. The range of people who attended was diverse-some of the obvious attendees were family lawyers, who often deal with highly stressed people. There were a few mediators as well, who would use the techniques in perhaps a different way. in  addition there were a number of lawyers who worked for government departments, which I thought showed an interesting commitment to better communication between the state and citizens.

For those not familiar with the idea, the concept was first developed by an American psychologist called Marshall Rosenberg.  Quoting from his writing “It focuses on three aspects of communication:self-empathy (defined as a deep and compassionate awareness of one’s own inner experience), empathy (defined as listening to another with deep compassion), and honest self-expression (defined as expressing oneself authentically in a way that is likely to inspire compassion in others).”

Some of the ideas seemed obvious, and there appears to be only limited academic study of the concept, although some seems to support the efficacy. A lot of the ideas seemed common sense and part of the tool kit of a dispute resolution professional, such as listening and decrypting what people are really saying. Mediators often talk about finding the real needs of the parties and moving beyond the rhetoric, which is much the same as what NVC teaches.

The stages of observation, feelings, needs and request to respond to communication are a sensible approach. You do not respond to an attack by another attack but try to find out what is really meant, and needed. The need for empathy in listening and answering is emphasised.

I think the seminar was perhaps entry level to present the idea, and some became a little impatient at the lack of more detail-but lawyers have high demands of their teachers! My response was to look out for more readings about the concept so I could build on what i had learned.

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