Policy-Discussion

[Eva Stöwe <eva.stoewe AT cacert.org>]

Hi all,

first: Etienne is NOT just a memeber of the community. He is a member of board and for discussing here he should disclose that according to PoP.

It does not work as Ian describes it. DRP stands against this.

The issue is: An arbitrator CANNOT accept a case until the arbitrator is chosen by the Case Manager (CM )for this case. DRP 1.5, which in total is much more than Ian has quoted:

"The Case Manager selects the Arbitrator according to the mechanism managed by the DRO and approved from time to time. This mechanism is to maintain a list of Arbitrators available for dispute resolution. Each selected Arbitrator has the right to decline the dispute, and should decline a dispute with which there exists a conflict of interest. The reason for declining should be stated. If no Arbitrator accepts the dispute, the case is closed with status "declined.""

So it's:

1. "The Case Manager selects the Arbitrator according to the mechanism managed by the DRO and approved from time to time."

We need a CM select the Arb here. Only if this is the case we come to:

2. "Each selected Arbitrator has the right to decline the dispute, and should decline a dispute with which there exists a conflict of interest."

So only those arbitrators who are selected by the CM have the right to decline the dispute. As long as an arbitrator is not selected by the CM the arbitrator cannot decline the case.

So all the argumentation of Ian only applies after a CM has selected arbitrators.

THIS is the point that is not happening for those cases (well ok, there are some where I was initial CM, but where I got no response from others, on the other hand if I directly had asked arbitrators they often gave some kind of answer).

While I was arbitrator I would have had time to handle a lot of those cases that are open. I would have been willing to handle them as arbitrator and also would have seen the need. So there would have been arbitration capacity for a multitude of more cases.

But there was no CM to select the arbitrator. AND there was no process defined by DRO according to which I could have been independently selected as arbitrator.

It's not a new issue. There are old arbitration meeting protocols long before my time that circle around the same issue again and again: Arbitrator being available for cases but no CM there to select the Arbitrator.

But the CM is needed to be able to start the case. (Four eyes principle.)

So the reason for those cases laying around is NOT that there was no arbitrator to handle them, that they would not be accepted by an arbitrator. To assume this is a wrong assumption.

DRP

The reason why the multitude of cases that are not done are not picked up is because the bottleneck is: not enough CMs.



For the whole time while I was member of arb-team I tried a lot to get this point changed.
* I asked DROs to clarify the process but the only one who ever did only set it to: "everybody should chose the cases they want"

* I then tried to get more CMs according to what the DRP and SP say about default CMs: That support members should be default CMs. When I brought this issue before board ... the result was filing of a case against me about abuse of power as this would be a hindrance for support.

* I tried to get DROs installed when there was none in person, so that there finally would be someone who would define this. The last candidate for this who was also chosen / approved by arb-team was Ian - who declined the job.

* I placed the issue of not-defined process before current "DRO" which is board as no specific DRO is named. ... They refused to define something as they consider that too much of an interference with arbitration. Probably rightly so, but according to a ruling from PD DRO is directly steered by board, so this is intense way of influence is intended by the policies (according to that ruling, which until PolG moves the HoP changes forward is what we have to accept).

[I also was active as CM to check if a multitude of cases could be removed because they are irrelevant or have resolved or something the like.]


Sure, you can update DRP. But what you have to do is to update the way how an arbitrator is selected. Because else it's the CMs who decide which case is done and which are "declined" by just not addressing an arbitrator. For most of the cases and over years now, there was at least one arbitrator who would have accepted the case (before I joined there were others).

It's NOT the intention of the DRP to allow the CM to decide which cases are declined. It's at arbitrator level. So the conclusion that not picked up cases are declined by arbitrators is wrong. If at all they are declined by CM.



So and now my PoP required disclosure about possible conflicts with the material here:

Most cases that are not picked up are of the nature of "support cases" and not conflicting ones, where there would be a "real" respondent. They only have a "real" claimant, so the issue described by Ian is not as prominent.

But regarding the "conflicting" case that ask for actions against a respondent, I fear I'm the respondent most often named as respondent. ... which I believe is most often a breach of DRP 3.5, but I already pointed to that issue in my last mails, here.


Kind regards,
Eva

On 27.07.2017 01:47, Etienne Ruedin (CAcert Inc.) wrote:

Hi all

A good point, Iang rises. If the arbitrators usually handled it as
described, I think, there is no need for echanges in the DRP, but if we
have douzends/hundreds/thousands of cases queueing for years, it would be
better to have some official precisions.

Also I would be happy to here some other voices from people that know the
matter better than me.

Best regards
Etienne
(member of the community)


On Tue, 25 Jul 2017 14:39:40 +0200, Iang <iang AT cacert.org> wrote:

Hi all,

One of the unfortunate side-effects of CAcert's Arbitration is that all 
filings are often treated with the full force, as if they were all 
really important civil matters.  This is not really scaleable.  Giving 
all the seriousness of a criminal-jury trial to a lightweight case, or 
one that just doesn't seem to attract attention, will not work.  It 
should be clearly seen as a signal to drop the case.  If not, why not?



In DRP it says

    /If no Arbitrator accepts the dispute, the case is closed with
    status "declined."/

Which should be pretty clear.  If it's not clear enough, perhaps amend 
DRP?  But let's see what is not clear first.

/"If no Arbitrator..."/ probably means active arbitration. No point in 
waiting for the inactive ones to say yes or no, because they are ... 
inactive.

/"...accepts the case..."/ raises a notification question both to the 
Arbitrator and back to the DRO or other agent that is responsible for 
handling this.  If there is good reason to believe ("the reasonable man 
test" ?) that notification is done perhaps by the active Arbitration 
list or other means, and nothing has been heard within a time, then 
we've reached a conclusion - none have accepted the case.

How long is a time?  Well, for small cases, I would say a month. This 
was in the minds of the authors when DRP was written.  For anything 
else, judgement applies, but likely 3 months would suffice for all but 
the most distressing cases.  Certainly, in no case longer than a year.

The notion that there is a case filed a year later with no arbitrator 
signals abuse.  We are also about protecting the respondents, and they 
*must* be given equal protection.  If there is no Arbitrator to respond 
to, they cannot respond.  Yet it is their right to respond.  This cannot 
go on for ever, it must be terminated otherwise we are in breach of our 
principles and the laws of the land.

Then, /"the case is closed ..." "/  Closing is clear, right?  Shut down, 
archived, dropped from the public record.  It never received a fair 
hearing so it must not be allowed to haunt the future.

Finally, /"... with status "declined." "/  Status "declined" is simply 
there to indicate it has been closed because it gained no attention from 
the Arbitrator.  This is a signal that it didn't have much or enough 
merit.  That is a signal no more, that isn't a judgement.  But it needs 
to be distinguished from /"Dismissed"/ which literally means "this case 
has no merit" being a binary.



So, an open question.  Is the situation not clear enough?  Or do we need 
to amend the DRP?  Either angle is fine.

iang

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