[DTM Escalation] Mediation

[Gomes, Chuck]

This is very helpful in my opinion Marika.  The wording could be modified to fit the escalation process.  One additional step that would be helpful is to determine how mediators would be identified.  Does ICANN legal have any ideas in that regard?

Chuck

From: dt6-bounces at icann.org [mailto:dt6-bounces at icann.org] On Behalf Of Marika Konings
Sent: Wednesday, May 20, 2015 3:13 AM
To: DT-M (dt6 at icann.org)
Subject: [DTM Escalation] Mediation

Dear All,

As requested yesterday, please find below the relevant section of the base gTLD Registry Agreement that deals with mediation.

Best regards,

Marika

Section 5.1 of the Base gTLD Registry Agreement (https://www.icann.org/resources/pages/registries/registries-agreements-en):


5.1           Mediation.  In the event of any dispute arising under or in connection with this Agreement, before either party may initiate arbitration pursuant to Section 5.2 below, ICANN and Registry Operator must attempt to resolve the dispute through mediation in accordance with the following terms and conditions:

(a)            A party shall submit a dispute to mediation by written notice to the other party. The mediation shall be conducted by a single mediator selected by the parties. If the parties cannot agree on a mediator within fifteen (15) calendar days of delivery of written notice pursuant to this Section 5.1, the parties will promptly select a mutually acceptable mediation provider entity, which entity shall, as soon as practicable following such entity's selection, designate a mediator, who is a licensed attorney with general knowledge of contract law, has no ongoing business relationship with either party and, to the extent necessary to mediate the particular dispute, general knowledge of the domain name system. Any mediator must confirm in writing that he or she is not, and will not become during the term of the mediation, an employee, partner, executive officer, director, or security holder of ICANN or Registry Operator.  If such confirmation is not provided by the appointed mediator, then a replacement mediator shall be appointed pursuant to this Section 5.1(a).

(b)           The mediator shall conduct the mediation in accordance with the rules and procedures that he or she determines following consultation with the parties.  The parties shall discuss the dispute in good faith and attempt, with the mediator's assistance, to reach an amicable resolution of the dispute.  The mediation shall be treated as a settlement discussion and shall therefore be confidential and may not be used against either party in any later proceeding relating to the dispute, including any arbitration pursuant to Section 5.2.  The mediator may not testify for either party in any later proceeding relating to the dispute.

(c)            Each party shall bear its own costs in the mediation.  The parties shall share equally the fees and expenses of the mediator.  Each party shall treat information received from the other party pursuant to the mediation that is appropriately marked as confidential (as required by Section 7.15) as Confidential Information of such other party in accordance with Section 7.15.

(d)           If the parties have engaged in good faith participation in the mediation but have not resolved the dispute for any reason, either party or the mediator may terminate the mediation at any time and the dispute can then proceed to arbitration pursuant to Section 5.2 below.  If the parties have not resolved the dispute for any reason by the date that is ninety (90) calendar days following the date of the notice delivered pursuant to Section 5.1(a), the mediation shall automatically terminate (unless extended by agreement of the parties) and the dispute can then proceed to arbitration pursuant to Section 5.2 below.

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