Public comment on Ombuds Office

Sun Jan 7 18:39:07 EET 2018

Internal dispute resolution offices are influenced and affected by
financial incentives and their independence and effectiveness are at stake
when the design of their establishment is influenced internally. It happens
specifically in employment disputes when companies have a large say in
designing the procedure as well as deciding on who can be the
mediator/arbitrator. Moreover, having only one person or even two people to
resolve disputes creates prior judgement, forms opinions about the
community members characteristics and many more shortfalls that hamper the
independence of the office. ICANN org, decides on hiring an Ombuds person.
Until now the office has not had a clear and well structure procedural
rules in conducting itself. Professional dispute resolution offices (and
remember they don't have to be law firms/ nor have to be arbitration
centers) have well established, transparent procedures and damage to their
reputation is costly.

 Organizations might want to keep their clients but they have less
incentives to do so than an internal office because, ICANN won't be their
only source of revenue but ICANN is the only source of revenue of an
internal office.

If you have a complaint against an ombuds person, or you think ombuds
person did not resolve the matter well, who do you go to? At the moment
either no one or ICANN org, ICANN org can't change ombuds on the spot or
for future complaints but an organization can. If we actually have a
professional organization that deals with these matters, that organization
can also deal with such issues. Note that the recommendations provide an
advisory council to create oversight for the ombuds. It's a good progress
but it reviews the ombuds office only 3 to 5 years. But I think the
combination of advisory council+external office is better.

I have always given an example of inappropriateness of Ombuds socializing
during receptions at ICANN (and I mean any reception anywhere): Ombuds is
now especially in charge of sexual harassment complaints. How would the
victim or complainant feel if they see Ombudsperson is having a drink with
the person they filed a complaint against? As to how it should be done etc,
the evaluators suggested a light touch approach and not a complete ban from
receptions. I don't agree with the evaluators.

You can read the evaluators responses in the Ombuds report
https://www.icann.org/en/system/files/files/ccwg-acct-ws2-draft-recs-ioo-05oct17-en.pdf

Farzaneh

On Sun, Jan 7, 2018 at 5:37 PM, Sam Lanfranco <lanfran at yorku.ca> wrote:

> I would like to second/endorse Michael’s concerns about outsourcing some
> of the tasks to outside the Ombudsperson’s Office. In addition to the risk
> that outsourced services will be overly friendly to the establishment
> position, building capital for future services retention, there is a high
> probability that they will not understand the ICANN context well enough to
> either (a) understand the problem in context, or (b) offer recommendations
> that are appropriate for the ICANN context.
>
> While issues may be standard, the purpose of a referral to the
> Ombudsperson’s Office is to both deal with the issue at hand, and to
> incorporate elements of the solution into ICANN internal best practice. The
> advantage to a one-stop Ombudsperson’s Office is that it (should) more
> fully understand the ICANN context. For that to work the Ombudsperson’s
> Office needs independence, accountability and -with regard to processes-
> transparency. It should have limited capacity to call on external expertise
> when dealing with ICANN issues.
>
> It is of course up to the Ombudsperson’s Office to engage in conduct that
> preserves its integrity and independence. That involves deliberate policies
> about how it deals with ICANN constituencies (and constituents) in the
> normal conduct of ICANN business. Judges must do this all the time. It is
> no difficult.
>
> I am not in favor of NCSG support for external expertise. I would rather
> have NCSG maintain a “watching brief” on the activities of the
> Ombudsperson’s Office, reviewing annual reports to insure preservation of
> integrity, than to have to trust the abilities of external “expert” service
> providers who fall woefully short in their understanding of how ICANN works
> and what recommendations might be useful.
>
> Sam L
>
> On 1/7/2018 4:01 PM, Michael Karanicolas wrote:
>
> Hi,
>
> Great stuff! Thanks very much for taking this forward.
>
> I have added some comments. Mainly, I think we need to do a bit more to
> flesh out the recommendation about limiting fraternization/socialization.
> These are issues that come up in other contexts - fraternization rules for
> officers in the military, socialization/relationship guidelines between
> judges and lawyers, etc. However, this is a really challenging boundary to
> set, and even more difficult to enforce. I think if we're going to suggest
> something as difficult as this, we need to put a bit more substance behind
> it and provide some more concrete ideas. If we're not going to do that, I
> think we should put the idea in softer terms, and maybe instead of
> demanding a hard rule be included we should suggest that the Ombudsman's
> office work in consultation with the community to set appropriate
> guidelines for socialization/personal conflicts.
>
> I also disagree with the idea that going to an external organization would
> necessarily be a better guarantee of independence... Indeed - I think it
> could have the opposite effect, since their more tenuous relationship with
> their client (ICANN) would create strong incentives not to rock the boat,
> or deliver unpopular truths. There's no shortage of examples of where an
> institutional oversight/accountability mechanism does the job well, when
> sufficient measures are taken to guarantee their independence. I can't
> think of many parallel structures where contracted organizations provide
> the kind of accountability we want here - though I would be open to
> suggestion.
>
> Best,
>
> Michael
>
> On Sun, Jan 7, 2018 at 4:19 PM, Kathy Kleiman <kathy at kathykleiman.com>
> wrote:
>
>> Very good comments! Tx Tatiana to you and Farzi for taking the lead on
>> this important issue.
>>
>> Best, Kathy
>>
>> On 1/7/2018 2:38 PM, Tatiana Tropina wrote:
>>
>>> Dear all,
>>> Farzaneh and I drafted a comment on the CCWG-Accountability Work Stream
>>> 2 (WS2) draft recommendations on the ICANN Ombuds Office (IOO).
>>> The call for comment and all the documents related to it could be found
>>> here:
>>> https://www.icann.org/public-comments/ioo-recs-2017-11-10-en.
>>> The draft of the public comment can be found here:
>>> https://docs.google.com/document/d/1LrMcu3zsTTyk1DG-2dbBMgzw
>>> jjxYxl-aHaYIS-iIGpQ/edit?usp=sharing
>>> We would appreciate your comments and suggestion. It is an important
>>> piece of work that has been done in the workstream 2, and we propose some
>>> amendments to it on behalf of the NCSG.
>>> Looking forward to your feedback! Please submit it till 12-13 of
>>> January, as we have to finalise it on the NCSG PC level before the
>>> submission deadline, which is 14th of January.
>>> Best regards,
>>> Tatiana
>>>
>>
>
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