What’s in a name?
Keri Morris, Legal Officer Disputes Resolution
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 a 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:
- to be industry leaders by providing an online dispute resolution service for domain
name disputes, and
- 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.
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.
Many issues were resolved at the coach level (by accredited mediators) and never
progressed to 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.
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
needing formal mediation — either via the platform or over the phone if the party
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 a 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 by hearing
the varied stories behind the purchase. Some names have deep meanings to the owners.
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
Māori in 1840 (Te Tiriti o Waitangi/ The Treaty of Waitangi), Pākehā (white New Zealanders)
are becoming increasingly aware that Māori 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 (Māori) 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
First Nation peoples throughout the world should be designing their ODR processes. This is
the way forward.