[Ws2-ombudsman] CCWG-Accountability-WS2-Ombudsman-DrafRecommendationsV2.3

[Bernard Turcotte]

All,

In preparation for out call in a few hours Sebastien asked me to circulate
the following materials:


   - Version 2.3 of the draft recommendations. This includes the
   suggestions made at the plenary as well as Farzane's suggestions cut and
   pasted from her email regarding recommendation 9. Please note the changes
   to the draft recommendations are, for now, only in the executive summary
   for discussion by the sub-group and that all changes in the document are in
   red-line.
   - Sebastien also reached out to our external evaluator for his comments
   regarding our discussions on recommendations 8 and 9 and you will find his
   points here below for your consideration. These comments were made
   considering a copy of Farzneh's proposed amendments.

Look forward to discussing these items at our meeting scheduled for 0500
UTC 5 October.

Bernard Turcotte
ICANN Staff support to CCWG-Accountability-WS2

Responses from Phil Khoury:

A few comments below – hope they are helpful.



   1. The ICANN Ombuds function is quite unusual – it is neither an
   in-house Ombuds, nor a Government Ombuds, nor an Industry or sector Ombuds
   – so very difficult to provide solid comparisons with ‘industry best
   practice’.
   2. Reflecting this, the Panel proposed is something of a hybrid – a
   little like a governing body, a little like a stakeholder advisory group, a
   little like an expert advisory committee.  It is intended to provide a
   breadth of perspectives to act as a sounding board and wise counsel to the
   Ombuds Office – and to advise the Board (as the decision-maker) on key
   matters it must decide about the Ombuds Office.
   3. To our knowledge there is no directly comparable existing panel.  The
   Energy and Water Ombudsman of Queensland (EWOQ) is a government (statutory)
   body which is nonetheless funded by industry fees and levies.  The relevant
   Minister of the State Government is the governing authority – but with no
   say in operations or complaint decision-making.  He or she takes advice
   from an Advisory Council – on approving an annual budget, on appointing an
   Ombudsman and on any proposals for change to the law.  Not quite the same
   as the proposed ICANN Panel – but with some similarities.
   4. It is important to recognise that Independence is only one aspect of
   an effective Ombuds function – and it must be considered in balance with
   other objectives such as credibility, accessibility, efficiency,
   accountability and so forth.  To illustrate, a private legal mediator with
   experience in family law matters and mid-level commercial disputes could be
   contracted to consider ICANN complaints – they may get top marks for
   independence however they would likely get very poor marks for background
   knowledge, technical credibility and accessibility.  (It takes more than
   independence to achieve recommendations or decisions that will be accepted).
   5. We considered the idea of an external mediation/law firm and rejected
   it because of what we considered was its poor fit with the ICANN
   environment (norms vary widely across the community, rapidly evolving, only
   some aspects governed by black letter law, need for intimate understanding
   of cultures and interests of different segments of the community, etc).
   Our experience of external ombuds functions such as these is that they
   become very legalistic (to compensate for lack of knowledge) and almost
   invariably have much higher rejection rates (rejecting the complaint).  The
   view becomes not what was “fair in all the circumstances”, but “did the
   person or entity that is complained about breach any rule”.
   6. Fixed term contracts and remuneration were only considered to be one
   small part of the independence framework – but an obvious one that needed
   fixing.
   7. Socializing is, I agree with FB, a problematic issue.  We would not
   support a blanket ban on the Ombuds Office staff circulating at Conferences
   and participating in what I would call ‘light touch’ social events.  It is
   valuable for the Ombuds staff faces to be known and for them to create an
   impression of approachability.  It is not however, appropriate for them to
   be seen as a regular ‘member’ of one or other community group or faction,
   nor aligned closely with staff or Board members, etc.  That is a matter of
   applying the appropriate mature, professional behaviours – talking to all,
   circulating around the ‘room’, avoiding late night drinking sessions,
   absenting oneself from sensitive discussions, not discussing specific
   complaints - in other words, engaging but maintaining a professional
   ‘distance’.



I hope that is of some help.



Cheers



Phil





Phil Khoury

Managing Director
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