I recently had the privilege of attending at the Straus Institute at Pepperdine University on the fascinating issue of Managing Conflict. This was presented as a new wave of opportunities for businesses around the world, and we engaged in discussions about moving beyond the traditional methods of conflict resolution using the courts, arbitration or even mediation. The theme was to rethink the concept of how we manage conflict. Of course in ICANN we have been discussing accountability, with the underlying theme of managing conflict within the ICANN community. There has been considerable debate about the mechanisms to ensure that NTIA will be satisfied with the mechanisms available to the community to address issues of concern. This has extended beyond the present three levels regarded as accountability mechanisms, being the office of the Ombudsman, reconsideration by the ICANN board and the Independent Review Panel. An underlying theme has been an emphasis on openness and transparency, but also mechanisms to ensure that if the community believes the ICANN board has acted improperly, then for removal of directors or the entire board. There has not been much discussion about the procedure for dispute resolution however. There was a very substantial debate about removal of directors as resolution of some forms of dispute particularly where those directors have done something which may have offended the community. But there has been little discussion about what sort of things would qualify for removal.
My learnings from this Seminar and others reinforce my belief that there is a considerable level of discussion and dispute resolution which can and should take place before engaging the nuclear options. These are of course essential to have, in any event, as there will on occasion, be no other option. But we should aim to have these as the very last resort. It is important however to consider the scope of dispute resolution and the way in which issues enter any such system and are processed. So even problems perceived as trivial must be treated as part of dispute resolution, just as much as the major conflict. It is perhaps a truism that a neglected trivial issue may easily become the next major problem. In the office of the ombudsman, it is important that we deal with all problems with the same respect and attention. What may look small to the community may be a very serious problem for the visitor. The seriousness of the problem is a factor in management of the issue, rather than an issue of screening or exclusion.
So when the community wants to consider the types of issue which should fall into the ICANN accountability functions, it is necessary to consider the scope and range of those, and establish appropriate systems to gather and manage the issues. An issue comes to the attention of a dispute resolution entities such as the ombudsman, as the first accountability mechanism. It is well recognised within the ombudsman community, that our offices exist to gather in complaints at this entry level, and which often prevent the complaints from becoming major problems for the organisation. This is likely to be the ongoing function at ICANN, and the recommendations support enhancement of this, together with a direct role in assessing reconsideration requests at first instance. So how do we identify and gather in complaints? Formal parts of the process are the case management system allowing visitors to make a complaint with a ticketing system on the ombudsman website. But complaints also come in by email, occasionally by telephone calls and by visits in person at ICANN meetings. The other essential part of this is to identify the scope of matters which are to be dealt with by the accountability systems, including the ombudsman but also more widely. The various accountability working groups have not specifically address this issue, largely because they need to concentrate on the bigger picture of the necessary changes to the ICANN bylaws and other matters. So this may fall into the category of matters to be discussed subsequently.
Framing the scope of dispute resolution issues carries a number of challenges. It would be impossible to describe every particular type of issue, and so the scope must be in general terms but bounded by the very specific ICANN mission. There cannot be any mission creep caused by the ombudsman getting involved in issues such as spam or fraud or the dangerous area of content. But the scope must also ensure that the matters historically investigated by the ombudsman, together with the enhanced powers continue to be available to the community as issues to bring to the office.
I am hoping to establish a panel probably at the Marrakesh meeting next year where we can discuss issues like this. It is of course the community who should decide the scope of issues which can be brought to the accountability functions, and there is a need for a discussion about the options. In the meantime I have published this note as part of awareness raising.