This is a gentle warning to mediators, because there already cases where parties feel they have been forced into a decision late at night. If this decision fatigue applies anywhere it must be in the context of a long difficult mediation where the decisions are flowing back and forth. So we, as mediators should be aware (if we are not already of the riskd of a poor decision. So, why not take a break-even wait until the next day-and see if this helps.
I have just come back from the AMINZ annual conference in Auckland New Zealand from 4 to 6 August. Much of the conference is directly relevant to the work I will doing as Ombudsman, and I will tell you about some of the sessions I attended. This was my first event as the Ombudsman, and it was interesting talking to my colleagues, some of whom knew nothing of ICANN and some who could ask the questions about new gTLDs. A number of my mediator and arbitrator colleagues are on the local Domain Name panel as mediators and adjudicators and expressed some interest in my role.
The first session I attended was the keynote address by a well known American mediator called Robert Benjamin. He deliberately provoked the listeners to question many ideas which they have been taught about the correct approach to mediation. I certainly did not agree with everything he said, but it is always useful to have your preconceptions challenged. His topic was rational decision-making or predictable irrationality.
We had another overseas speaker Michael Lee,who is head of the International Centre for Dispute Resolution based in Singapore. He spoke a number of times on issues in relation to negotiation and also a fascinating insight into how successful companies manage dispute resolution, and the strategies which they used. He analysed this with evidence from the legal budget from a number of substantial companies, and the successful companies spend much less on dispute resolution and lawyers, because of better management of the dispute resolution process.
The conference had a number of sessions on good practice in mediation,and developing a framework for competency and assessment of competency. There appears to be a difference between those who start from the premise that potential academic qualification is necessary, from those who maintain that an exhaustive practical background is more important. I suspect the answer is somewhere in between, but as a mediator perhaps that is inevitable. Again, the debate is important to enable us to reflect on our practice and to learn from the different views.
A particular interest was a session from Peter Jones about construction adjudication as a model for online dispute resolution, discussing models of software to be used for this purpose.I have been appointed as a construction adjudicator in the past, and completed the number of these entirely by exchanges of e-mail, but the models he proposes go beyond this using the Internet forum model, which enables a rapid debate of the issues, with exchanges of all relevant documents in an open and transparent fashion.
It is important as a mediator to take into account cultural factors, and in New Zealand, with both indigenous people and many new immigrants from Asia, we cannot assume that discussions are going to be understood by the other party without some insight into the different cultural approaches. Ngorongo Ormsby talked to us about a bicultural perspective to mediation preparation, with particular reference to Maori concepts of dispute resolution, and placed in this in the context of the Haka used when two groups of Maori meet, to establish the ground rules.
The final keynote speaker was New Zealand High Court Chief Judge Helen Winkelmann, who reminded us that alternative dispute resolution should perhaps be more properly described as ancillary to traditional court litigation.I asked her a specific question on the use of the judicial settlement conference,and she confirmed that a number of judges are uncomfortable with the process, although some have embraced it enthusiastically. She emphasised that mediation has its place, but that jurisprudence requires development of legal principle through properly argued cases and we should not forget this.
All in all, this was a very valuable conference and educative for me.
My name is Chris LaHatte, and I am ICANN’s new Ombudsman.
I will be available online to assist and facilitate the ICANN community as the organization faces many challenges from the gTLD expansion, the huge growth in Internet use in the developing world, and the cultural interplay and resolution from new participants in ICANN.
I am an experienced mediator and lawyer and have practiced in New Zealand, Taiwan and Central Asia. I qualified as a lawyer from the University of Auckland and earned a Masters Degree in Dispute Resolution from Massey University, with judicial settlement conferences as my thesis. I am a Fellow of the Arbitrators and Mediators Institute of New Zealand, a mediator for the New Zealand Law Society on cost issues and a construction law adjudicator.
After practising as a barrister for many years, I have come to see alternative dispute resolution as the most effective tool in dealing with conflict. I have presented papers and written articles about aspects of dispute resolution and other matters and I am an author for Thompson Reuters on court procedure.
Outside of this, I am the husband of Mandy, a schoolteacher, and the father of three teenage children, and I practice my conflict resolution skills on them.
I look forward to serving you, the ICANN Community. Please don’t hesitate to contact me at ombudsman@ICANN.org.
I was deeply saddened to hear of the death of Chief District Court Judge Russell Johnson. He has been taken too early and the courts of New Zealand have lost a great leader. His open and humble approach to his work, with just a touch of the naval command, was his outstanding contribution. He sat everywhere as the Chief Judge, but always had time when I met him in the streets to stop and chat. His colleagues on the benches must be saddened by the loss of their leader, a man who worked alongside rather than a distant figure and with a quick quip and smile. His family must also be distressed and my heart goes to them as well.
I do not often comment on overseas litigation, but what is interesting about this case is that they settled the claim with a mediated agreement and then sought to undo the agreement, essentially because they claim they were misled on the value of the Facebook shares they received. It is unusual to overturn a mediated agreement, but if their assertion was correct about the misleading values, then this could have been possible, although the US Federal Court clearly thought the assertion didn't carry much force. It does underline the care needed in drafting such settlement agreements and the need to be transparent at the mediation and in the provision of information.
This decision refusing the appeal was perhaps not entirely unexpected. What is interesting for me are 2 disparate matters. The first referred to publicity on TV7, crushingly dismissed as a minor channel. The other is the ringing endorsement of Justice Potter as the trial judge and also of counsel for the accused at the trial, Judith Ablett-Kerr QC and Greg King, (who curiously is a presenter of the Court Report on the "minor" channel, TV7).
This must be an improvement on the antagonistic approach to much criminal law. As children we were told to say sorry and make friend s again and a surprising amount of criminal prosecution should go this way. There will be some for whom jail is sensible, but if we get some sanity in the sentencing because of restorative justice then I applaud this extra funding
At last-a sensible report from the Law Commission. As both readers of my blog will know, I have criticised the silliness of the Sir Geoffrey Palmer Alcohol report. Now the Commission has written an eminently sensible report about crime and drug offending. Key provisions are decriminalising minor drug offences and referral to drug education-the ambulance has finally driven to the top of the cliff! The often arbitrary application of the law on minor drug offences is most unfair, and I suspect is also populated by numbers who do not have the resources to fund lawyers to obtain discharges without conviction or persuade the Police to divert the charge. Quoted from the site-
"A mandatory cautioning scheme for all personal possession and use offences that come to the attention of the police, removing minor drug offenders from the criminal justice system and providing greater opportunities for those in need of treatment to access it.
A full scale review of the current drug classification system which is used to determine restrictiveness of controls and severity of penalties, addressing existing inconsistencies and focusing solely on assessing a drug’s risk of harm, including social harm"
Now watch most of the politicians run for cover when it comes to application of this useful and thoughtful report. The present party could not get this past the dinosaurs although I suspect the Attorney General, who is conservative but has a rigorous and legally acute approach to his job, would be a cautious supporter.
Predictably the Police Association have objected, completely failing to understand what the report is about. They can be relied to go through the usual pose of throwing hands in the air with faux horror at anything vaguely liberal in sentiment. I expect if you asked Federated Farmers they would adopt the same pose.
This is a sad story. The mediator was apparently well respected by the parties, but the recent political events in the Arab world have tainted the process, and the mediator has lost the confidence of Hamas. The soldier is a human being, and missed by family. Hamas apparently feel powerless without him as a bargaining chip. But when a mediator has lost the confidence of a party then the negotiation loses the important element of good faith brokering. To me however, they should not give up the mediation-all the other alternatives are too ghastly. I would happily volunteer to do this, although an obscure New Zealander is more likely to attract derision unfortunately. But any peace which can be obtained is better than rockets and mortars.
A recent article on neuroscience and crime is well worth reading, from the Daily Telegraph. I quote from this below:-
"Currently, our patterns of punishment are founded on the concepts of personal volition and the attendant culpability. But a shift in our understanding of individual differences suggests a move toward prison sentences tailored to the risk of recidivism rather than the desire for revenge.
Some people will say that bringing science into sentencing removes its humanity. But as it stands now, research shows that ugly people get longer sentences than beautiful people, and psychiatrists and parole boards, when tested, have no predictive power in guessing who will reoffend.
Beyond modulating sentences, a deeper understanding of the brain will allow us to move beyond treating incarceration as a one-size-fits-all solution. In most countries, prisons have become de facto mental health care systems. It is more cost-effective, and less likely to encouragecriminal behaviour, to divert the mentally ill to mental health courts designed to deal with them."
I think that humour is generally frowned on in court judgments, and Justice Kirby wrote a paper condemning the inappropriate use of humour and of anything but a dour commentary. The Court of Appeal has either offended against this deliberately by the use of irony (which I hope is the case) or, and I hope this is not the case, are grossly out of touch with reality. What attracted my attention was a sentencing decision relating to aggravated robberies in South Auckland. Apparently Judge Wade had, in sentencing decisions, made comments that there was altogether too much of this and the sentences should be increased. Following the lead on this, Judge Andree-Wiltons imposed a stiff sentence saying that this should be the policy.
The Court of Appeal then said in CA493/2010 Christofides v R COA 01 April 2011, that
"We observe at the outset that Judge Wade appears to have intended his comments in Leatinuu to operate as a warning to persons who might be tempted to rob retail shops in South Auckland after 13 November 2009. The robbery for which Mr Christofides was to be sentenced had, however, been committed 18 months earlier. Mr Christofides therefore had no opportunity to reflect upon Judge Wade’s words before he decided to carry out the robbery of the Meadowlands Superette".
Res ipse loquitor
I am sure this sentencing deciison will be eagerly read in the Otara Shopping center as they plan their next robbery.
The Sunday Star Times published an article about Judge Epati going on stress leave. If there ever was a court where stress leave was needed, it would be the Manukau Court, which has one of the busiest judicial workloads in the country. The article criticised him for 2 decisions (over about 9 years on the bench) where his decisions were overturned on appeal. That isn't a bad rate for the number of decisions over that time, and must be a reflection of the stress he is under. My personal experience is that he is always courteous and has a quick wit, often useful for defusing the tense atmosphere. With this comes compassion and a real insight into the South Auckland culture, I hope he has the chance to recover and get back to work. I wonder whether judges sometimes need to compensate and talk to counsellors. The grim side of criminal law can be unrelenting. Mediators are careful to engage in peer support but judges are expected to be pretty tough. This cannot be true for all and we could lose good judges because of the lack of outlets for them to compensate.
In New Zealand the Rules Committee are getting excited about electronic discovery. I wonder how many of them have been involved in this from a practical level, as in my experience the judges (with one or two honourable exceptions such as Judge David Harvey) barely know how to use their computers and would stare blankly if you talk about metadata. In the United States there are significant problems emerging. See in the ABA Journal at http://www.abajournal.com/news/article/e-discovery_sanctions_reach_all-time_high_for_litigants_and_lawyers. As the Rules Committee are also looking at sanctions for lawyers who do not comply with timetable orders, they need to consider the low level of understanding of lawyers in practice about this concept of electronic discovery. Any changes must come in with much more training and education, not just of the specific rules but also in computer basics.
The vilest deeds like poison weeds
Bloom well in prison-air:
It is only what is good in Man
That wastes and withers there:
Pale Anguish keeps the heavy gate,
And the Warder is Despair
For they starve the little frightened child
Till it weeps both night and day:
And they scourge the weak, and flog the fool,
And gibe the old and grey,
And some grow mad, and all grow bad,
And none a word may say.
This extract from Oscar Wilde's poem, reminds us that jail was not the answer at the turn of the 19 Century, and is still true. What good did the jailing of a fun loving, witty and erudite poet achieve? Most of the inmates in New Zealand jails lack Oscar's poetic skills, and certainly his aesthetic sense, although in prison they may adopt some of his preferences. But when will we think of a better answer?