[CCWG-ACCT] Lawyers' High Level Review: Annexes 1, 8, 9, 10, 11
chris.lahatte at icann.org
Tue Jan 26 01:48:25 UTC 2016
A number of people have commented about the role of the ombudsman with some of the suggested changes. Bruce Tonkin has commented in some detail which is very helpful. The office of the ICANN ombudsman, subscribes to the standards of ombuds practice as outlined by the International Ombudsman Association. I have extracted from the website the following description of what we do and do not do https://www.ombudsassociation.org/Resources/Frequently-Asked-Questions.aspx
Activities and functions most frequently undertaken by an ombudsman include, but are not limited to:
* Listens and understands issues while remaining neutral with respect to the facts. The ombudsman doesn’t listen to judge or to decide who is right or wrong. The ombudsman listens to understand the issue from the perspective of the individual. This is a critical step in developing options for resolution.
* Assists in reframing issues and developing and helping individuals evaluate options. This helps individuals identify the interests of various parties to the issues and helps focus efforts on potential options to meet those interests.
* Guides or coaches individuals to deal directly with other parties, including the use of formal resolution resources of the organization. An ombudsman often seeks to help individuals improve their skill and their confidence in giving voice to their concerns directly.
* Refers individuals to appropriate resolution resources. An ombudsman may refer individuals to one or more formal organizational resources that can potentially resolve the issue.
* Assists in surfacing issues to formal resolution channels. When an individual is unable or unwilling to surface a concern directly, the ombudsman can assist by helping give voice to the concern and /or creating an awareness of the issue among appropriate decision-makers in the organization.
* Facilitates informal resolution processes. An ombudsman may help to resolve issues between parties through various types of informal mediation.
* Identifies new issues and opportunities for systemic change for the organization. The unique positioning of the ombudsman serves to provide unfiltered information that can produce insight to issues and resolutions. The ombudsman is a source of detection and early warning of new issues and a source of suggestions of systemic change to improve existing processes.
What an ombudsman does not do:
* Because of the informal, neutral, confidential and independent positioning of an ombudsman in an organization, they typically do not undertake the following roles or activities:
* Participate in formal investigations or play any role in a formal issue resolution process
* Serve in any other organizational role that would compromise the neutrality of the ombudsman role
* Receive notice for the organization
* Make binding decisions or mandate policies
* Create or maintain records or reports for the organization
It is important to note that this is a suggested list and not an exhaustive list. Over the 12 years of the ICANN ombudsman, my predecessor and I have attempted to use the IOA guidelines for best practice within the office. It is worth noting that we consistently have declined to act as an appeal authority, but have only sought to look at the issue of whether a decision has been fair. This means that while the decision may not be something which we would support on an appeal basis, if the process has been fair, then we would not interfere with the decision or criticise what has been done. Of course, it is conceivable that a decision could be so outrageously wrong that it could become unfair. That is however a very unlikely event given the checks and balances before decisions are generally made within the ICANN community.
As to the resources to evaluate a reconsideration request, if the ombudsman was looking at these on the same basis as dealt with historically, then I would be looking at the fairness of the decision, but would not seek to review the logic or legal basis for the decision.
There is nothing wrong in principle with giving the ombudsman a wider role in reviewing a reconsideration request, but there certainly would be a need for resources to evaluate complex reconsideration requests. It is difficult to predict the volume of reconsideration requests, now that the new gTLD program is largely completed. Before this programme, reconsideration requests were relatively rare, and I suspect that this will revert to a much lower volume of requests looking forward. However if my office was to receive reconsideration requests then I would will try to facilitate resolution by informal processes in any event including shuttle diplomacy and mediation. If this was not successful, any report which I then wrote would need to be restricted to the fairness of the reconsideration decision. If this was the proposal, then that would not need to be any changes to my present bylaw and framework. If there were substantial numbers, then the additional resources would be likely to include a research assistant and possibly more clerical support. But the analysis of the new gTLD reconsideration requests, while involving a substantial amount of time, has been possible within my existing workload. The real issue is what the community wants the ombudsman to do.
The essence of the practice of an ombudsman is to ensure that there is fairness within the organisation and community. Sometimes this means we try to ensure the parties open communication and resolve the issue themselves. When this is not possible we recommend, but it would be unusual for an ombudsman to have the power to compel some action, and possibly inconsistent with the IOA standards.
I hope this places the comments in context, but would be happy to engage in discussion of the working group finds this necessary.
For feedback on how I am doing http://www.icannombudsman.feedback/
All matters brought before the Ombudsman shall be treated as confidential. The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint. The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint.
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