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ODR in Aotearoa: What’s in a Name?

As the regulator of the .nz domain name space in the information age, there is an expectation that the New Zealand Domain Name Commission Ltd (DNCL) will provide people with resolution to domain name disputes in a way that is innovative, practical, timely and also meet the needs of the members that it serves.

There were two audacious goals set for the six month online dispute resolution (ODR) pilot which were delivered by a very small team: 

1       to be industry leaders by providing an online dispute resolution service for domain name disputes, and

2       simultaneously action the .nz Advisory Council’s 2020 recommendation that outstanding conflicted domain names should be resolved. 

* To understand the background, please read my previous article: https://www.mediate.com/odr-from-dial-up-to-fiber/

In effect the two goals required that DNCL and Immediation design and implement two separate ODR systems – the first, in which a domain name holder could register a complaint against another party by creating a matter online and making a submission. And the second, Conflicted Domain Names was an “invitation only” option for registrants (domain name holders) who had rights to a conflicted domain name.  

For the latter, DNCL were in an unusual position in that they were initiating a dispute resolution process for two external parties to resolve a “conflict” that neither party might be interested in resolving, and who had no current nor ongoing relationship. 

Due to the high volume of matters that navigated through the conflicted domain names process, this article will focus primarily on the conflicted names resolution process. The pilot for Domain Name dispute ODR service has been extended until June 2023.

What was involved?

Following the launch of the pilot, registrants were invited via email to engage in ODR. Videos, e-learning and background information was provided on the DNCL website.

Once two parties on the same matter accepted the offer and signed up on the ODR platform they had the option to choose e-negotiation or mediation. If e-negotiation was the agreed first choice and no resolution was found, they could move forward to mediation.  

A key feature was that settlement agreements at mediation were auto populated with parties details and could be completed easily with docusign signatures, live in the mediation conference. These settlement agreements were then emailed to the parties and were enforceable by the Domain Name Commissioner. 

Coaching

Many issues were resolved at the coach level (by accredited mediators) and never progressed to a formal mediation. Less formal than mediation it allowed for frank conversations and reality testing with an accredited mediator. Nowhere near as thorough as Cinnie Noble’s CINERGY model but it did add value to the service. 

Insights

We found that many people preferred to negotiate incognito rather than face to face via mediation. This may be due to the nature of the issue in that it is a domain name dispute and also, that they don’t know the other party and there is no ongoing relationship. ODR was a great choice for conflicted names disputes due to its transactional nature. 

More matters were resolved through e-negotiation than through mediation – often with assistance from a coach. The coach could facilitate discussion between the parties without the need for formal mediation – either via the platform or over the phone if the party preferred.

ODR can remove administrative burdens and easily resolve matters that are very transactional in nature, however there is still a place for genuine conversation and mediation to see resolution that is a win-win for both parties and not just a monetary exchange. 

At the core is a person

For myself, coming from a lengthy background of family and care of children matters, it could be easy to think that “this is just a domain name”. However, mediating these issues highlights that at the heart of all mediation is something that matters and is often something beyond monetary value to people.

I have learned to appreciate the reasons people purchase domain names through hearing the varied stories behind the purchase. Some names have deep meaning to the owner. These narratives often need to be heard and talked about in order for the other party to recognise and understand the intrinsic value of the name.  

Where does culture fit in ODR?

In Aotearoa New Zealand, a country founded on a Treaty between the British Crown and the Maori in 1840 (Te Tiriti o Waitangi/ The Treaty of Waitangi), Pakeha (white New Zealanders) are becoming increasingly aware that Maori words are taonga (treasures) and have value and meaning. This has a direct impact on domain names. 

In addition to this, “we” have mahi (work) to do in order to create an ODR service that begins from a tikanga (Maori) worldview.  In the past, organisations have simply created a service for a specific group of people as an “add on”. It’s quite a different thing to pause, reflect and recognise that the Treaty requirement of “the right of development” is actually a wonderful thing. 

First nation peoples throughout the world should be designing their ODR processes. This is the way forward. https://www.mediate.com/whatever-you-do-for-me-without-me-you-do-to-me/

author

Keri Morris

Keri is the Manager ODR at the Domain Name Commission She has many years of experience in dispute resolution and is passionate about creating opportunities for agreement. Keri is a Fellow of the Chartered Institute of Arbitrators UK and a Fellow of Arbitrators and Mediators Institute NZ. MORE

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