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Hi,<br>
<br>
Whose judgement is the good judgement?<br>
<br>
Isn't the process based on our the social compact and doesn't it
provide the means by which we equitably come to understand the
community's judgement?<br>
<br>
I do not think the problem with reconsideration and the like is lack
of judgement, but rather that the process excludes certain items
from consideration so that a community judgement, as represented by
a Board, can't be derived.<br>
<br>
Personally I am not looking for judgement that is beyond the
process. <br>
<br>
Also, I do believe that currently ICANN is run on a CEO top-down
notion of judgement, and the reintroduction and repair of process is
what is needed. Not more great men of vision.<br>
<br>
<br>
avri<br>
<br>
<div class="moz-cite-prefix">On 29-Jan-15 08:47, Kieren McCarthy
wrote:<br>
</div>
<blockquote cite="mid:1422539224559.8f881cdc@Nodemailer" type="cite">
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<span id="mailbox-conversation">Bruce,
<div><br>
</div>
<div>Your response for me highlights the precise problem.</div>
<div><br>
</div>
<div>I think you are so embedded in the ICANN staff and Board
culture that it seems impossible to look at things
differently.</div>
<div><br>
</div>
<div>Why should human judgement be a one-off? There was human
judgment in the evaluation so now we have to rely on process
and legalese?</div>
<div><br>
</div>
<div>I would argue, having read some of the evaluations, that
the mistakes that have been made were often due to an
over-reliance on process rather than good judgement. </div>
<div><br>
</div>
<div>But regardless, that doesn't mean that an appeal has to be
entirely process driven. There should be space for someone to
say: this was a poor application of the rules. </div>
<div><br>
</div>
<div>The only reason there isn't is because of the overly legal
mindset of the organization.</div>
<div><br>
</div>
<div>The actual rulings coming from the reconsideration
committee contain not a shred of humanity. They are legal
briefs designed to maximize the chance of winning in the next
process, not efforts to explain that people's concerns have
been properly considered.</div>
<div><br>
</div>
<div>It is very hard to get out of this mindset once in it. And
it becomes hard to believe that most people will let something
drop if they feel they have been given a fair hearing.</div>
<div><br>
</div>
<div>It's not just the new gTLD process though. It is a cultural
thing. And it makes ICANN the corporation unthinking,
inflexible, insular, self-justifying and defensive.</div>
<div><br>
</div>
<div>Yes, you need process and legal argument to protect the
organization. But only as a last step. Not from the get-go.</div>
<div><br>
</div>
<div>Aside from the fact it shutters the organization off from
the community it is supposed to serve, it is also very
expensive and time-consuming.</div>
<div><br>
</div>
<div>ICANN even used the cost of constant lawyering to argue
that the Merck applications should be shut down. That should
have served as an alarm bell but it hasn't because the culture
is so endemic.</div>
<div><br>
</div>
<div>I could go on with lots of different examples but you get
my drift.</div>
<div><br>
</div>
<div><br>
</div>
<div>Kieren</div>
<div><br>
</div>
<div><br>
</div>
<div><br>
</div>
</span>
<div class="mailbox_signature">
<br>
-<br>
[sent through phone]</div>
<br>
<br>
<div class="gmail_quote">
<p>On Thu, Jan 29, 2015 at 3:45 AM, Bruce Tonkin <span
dir="ltr"><<a moz-do-not-send="true"
href="mailto:Bruce.Tonkin@melbourneit.com.au"
target="_blank">Bruce.Tonkin@melbourneit.com.au</a>></span>
wrote:<br>
</p>
<blockquote class="gmail_quote">
<p>Hello All,
<br>
<br>
<br>
>> Yep, the new accountability regime must go beyond
just whether ICANN management followed the prescribed
process, which is all that a Reconsideration Request is
supposed to consider.
<br>
<br>
>> So let’s expand the criteria that independent
review panels can use, so that humans will review a
board/management decision on substantive questions of
judgement.
<br>
<br>
One thing to consider here is that with respect to the
reconsideration requests applying to many of the new gTLD
cases – independent human judgement has already been
applied. My concern though is that in many cases it is a
panellist of one that has made the decision. The Board in
general is not expert in the matters of the panellists and
it doesn’t seem appropriate for the board to then try to
over-ride the independent panel - unless the panelist has
failed to consider the right criteria etc. When we find that
a panel hasn't considered all the material - the response is
to send it back to another panel to consider.
<br>
<br>
In terms of reviewing the new gTLD program – I think it is
useful to consider how an appeals process might work. It
presumably would imply that a larger panel (e.g. 3 or more
panellists) is considering an issue. The concern I would
have though is that this will just be invoked by the losing
party in every case. For reconsideration requests we had an
appeal for nearly every judgement by the party that lost a
judgement. In general for every case - there was a party
that was happy with the decision and a party that wasn't
happy.
<br>
<br>
I compare this to a jury process in the legal system. I
don’t think you can just ask for another jury to hear the
case when the first jury finds against you. There needs to
be some basis for the appeal other than that you disagree
with the initial finding.
<br>
<br>
The Board is actually very keen to improve the
reconsideration process, and also keen to ensure that the
Board itself is not trying to over-ride independent panels .
I think the right approach in many of these cases is to make
sure that appropriate appeals are built in the relevant
process - whether it is new gTLDs or ccTLD re-delegations
etc.
<br>
<br>
So careful work is needed to ensure that we have a process
that ensures independent reviews of decisions, and also
appropriate criteria to initiate a review of a decision.
<br>
<br>
Regards,
<br>
Bruce Tonkin
<br>
<br>
<br>
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</p>
</blockquote>
</div>
<br>
<br>
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