How mediation works
In mediation, the parties speak for themselves and negotiate a domain resolution with help from a neutral expert called a mediator. We offer a free mediation service for disputes.
Mediation is a way to resolve a dispute
Mediation is our process for domain resolution services. It is a method for resolving disputes that is:
- more co-operative and active than other domain dispute resolution options, such as courts and tribunals.
- more informal than some of our other processes, such as expert determinations and appeals.
An expert decision is not always necessary to resolve a dispute with a domain name holder.
Mediation is different from negotiation. In negotiation, the two parties attempt to reach an agreement without outside support. Mediation provides formal outside support for reaching an agreement.
Mediation is voluntary. Any agreements reached within mediation must be in writing to be legally binding.
We have a panel of expert mediators who are independent experts.
What mediators do and don’t do
The mediator is a go-between. They help you and the other party in the mediation to find a resolution about your domain dispute that everyone can agree to. As they work, mediators:
- help both parties communicate
- identify problems and challenges
- explore options
- propose resolutions.
Mediators are limited in what they can do. Mediators don’t:
- provide legal or professional advice
- decide in favour of anyone
- impose an outcome.
Mediators also can’t be called as witnesses at court, because mediation is without prejudice.
Code of conduct for mediators
- be neutral and impartial
- treat the parties equally, without bias
- be allowed to communicate privately with any of the parties or persons brought into the mediation.
The last item is supported by the understanding that the mediator won’t reveal the content of any such communication to the other party without specific permission.
Mediators must not:
- give legal or professional advice to either the complainant or the respondent
- impose an outcome
- make any decision for the complainant or respondent.
Any time a mediator realises that something about the case might have or is having an impact on their neutrality, .nz policy provides support and recommended actions. Finding a different mediator is a last resort.
Our standards for mediation
Our mediation service has the following standards.
- Voluntary — You have to opt into mediation.
- Mutual — Both parties have to agree to the process and to the outcome. Agreements must be in writing to be legally binding. People do come to verbal agreements sometimes.
- Confidential — What happens in mediation stays in mediation. Neither party discusses it with others, verbally or in writing.
- Mediation is ‘without prejudice’ — ‘Without prejudice’ is a legal term meaning that words, actions, and evidence presented in mediation can’t be relied on in a court of law.
- Impartial — The expert we appoint for mediation is independent from the Domain Name Commission.
- Expert — The mediator has experience and specialist knowledge in mediation and has been admitted to our panel of approved experts. Mediators must apply to join the mediation panel.
- Remote — The mediation process takes 10 working days. It takes place remotely, via email, phone and teleconference, rather than in person.
- Inexpensive — The mediation service is free for people to use. We don’t charge participants a fee for mediation. We pay for the mediator’s time and expenses.
While mediation is a free service, the mediator’s time is paid. Mediator availability may be subject to their other work or responsibilities.
How to request domain resolution via mediation
Mediation can only take place if a dispute is complete. A dispute is complete when a registrant has filed a response to a dispute against them within the required timeframe. The complainant has also replied. A complete dispute is called a valid dispute. When a dispute is a valid dispute, and both parties agree, they can request mediation.
To request mediation, you need to submit a dispute.
After we receive a mediation request, we write to the registrant and let them know a dispute has been lodged. The registrant is invited to respond and to note if they are interested in mediation or not.
If the registrant does not respond at all, mediation is not a possible option, and the dispute escalates.
Your responsibilities during mediation
If you are a party in mediation, you need to:
- respond to contact in a timely way
- remain in touch
- help or provide information when asked to
- be responsive and respectful.
Mediation works best when both parties co-operate
Both parties need to co-operate in mediation to help resolve the dispute. Please:
- be respectful, timely, reasonable, and constructive
- participate fully and in good faith
- comply with reasonable requests and directions from the mediator.
If parties are not responsive or in contact, the mediator can end (terminate) or escalate the dispute.
Mediation is a time to work together, not a time to vent. If one party is not cooperative or abusive towards the other party, the mediator can end the mediation or escalate the dispute.
How the mediation process works
The goal of mediation is to reach an agreement that both parties are satisfied with. If an agreement can’t be reached, the mediation process ends.
The mediation process takes 10 working days
Mediation takes 10 working days. Mediation is time capped at this limit. If a resolution is not likely after day 10, then the dispute moves into a different mode. Rarely, both parties ask for an extension to mediation, and the extension is permitted.
Mediation is complete when there is an agreement
An agreement is the proposed resolution to the dispute. Mediation can be complete in one of three ways:
- Parties reach a settlement agreement that is in writing and legally binding.
- Parties reach a verbal agreement that is not legally binding.
- Mediation is terminated because the parties can’t agree on a resolution, or one party is not co-operative.
Mediation may result in a settlement where a domain name is to be transferred from one party to the other. To complete this, the parties must contact the registrar directly, and process the change of registrant.
The process for finalising an agreement from mediation
People who reach agreement receive a written version of the agreement for signing. Note that verbal agreements are possible, but they’re not legally binding.
One of the conditions in the written agreement will be that:
'The parties acknowledge that the Domain Name Commission has the authority to enforce the agreement'.
This clause binds us in ways that verbal agreements do not.
The parties must read, agree, and sign the Agreement. Before signing, read the agreement in full. Signing the agreement means you will abide by the agreement, so make sure it meets your needs. If you need a change to the agreement, discuss it with your mediator.
When the agreement is complete, and both parties have signed it, submit the signed agreement to your contact at the Domain Name Commission. We act on the outcome.
Both parties can ask the mediator to make minor adjustments to the wording or structure of the agreement, but not to its meaning or intent. These minor adjustments include:
- fixing a typo
- making the way something is written clear, correct, or neutral.
The changes must not introduce major changes and new ideas, or otherwise reject something that was settled.
Either party can withdraw from mediation at any time
Both parties have the right to withdraw from mediation at any time after discussing this with the mediator.
If mediation doesn’t work, and the dispute goes to an expert for determination, any mediation or negotiation discussions are confidential. They can’t be discussed with the expert or other third parties, unless both parties agree to share that information.
If you abandon mediation without notice to anyone, this can be taken into account elsewhere. Remember: cooperation is key.
A mediator can terminate mediation
After consulting both parties, the mediator can terminate the mediation if they feel unable to help the parties resolve their issues.
You can request more mediation
If you change your mind, or the other party does, either of you can request more mediation. A second round of mediation is possible if the resources are available and we agree a second round is worthwhile.
Mediation is confidential but there are some legal exceptions
No one is allowed to release details of the mediation or its outcome to third parties, with a few exceptions.
Mediation is undertaken ‘without prejudice,’ a legal term meaning that the things that both parties say and do as part of the process can’t be relied on in court.
Once the dispute ends, mediators can destroy their notes and records, as these can’t be relied on in court.
However, the fact of mediation — that mediation happened — can be referred to in a court proceeding, or in equivalent proceedings.
Mediation details may be released if this disclosure is ordered by a New Zealand court or a decision-making body of competent jurisdiction.
At times, laws or regulations may compel the mediator, either of the parties, or the Domain Name Commission to disclose information.
Employees and agents of the Domain Name Commission involved in mediation can’t be brought as witnesses.
What happens next?
People who reach agreement, receive a written version for signing. (Verbal agreements are possible, but they aren’t binding.)
One of the conditions in the document will be that: 'the parties acknowledge that '...the Domain Name Commission has the authority to enforce the agreement'.' (N.B. This is the clause that binds us, in ways that verbal agreements don’t.)
All things going to plan, the parties read, agree, sign and submit the agreement, and the Commission acts on the outcome.
Before signing, it’s important that you read the agreement in full, and take into account that signing and submitting, means you will do and not do the things that agreement says you will do and not do, and that it meets your needs.
If one side, of the other, doesn’t immediately agree: for example:
- there’s a typo;
- someone thinks that the way something is written is unclear, or wrong, or needs tweaking; or else
- the words are open to interpretation and they want an adjustment, the mediator is able to make minor amendments.
The changes must stop short of introducing major changes and new ideas, or otherwise rejecting something that was settled.
Both sides can ask the mediator to make minor adjustments, to the wording, the structure of the draft but not its meaning or intent.
The agreement is the proposed resolution to the dispute, not a continuation of it.
If an agreement can’t be reached, mediation may need to recommence, or possibly terminated, without a resolution.
How are mediators appointed?
The Commission has a panel of expert mediators it’s able to call on who are independent experts, with experience in mediation and sometimes, courts and legal proceedings.
Generally, we recruit new mediators when existing ones resign or retire.
Courts and mediation proceedings
No one is allowed to release details of the mediation or its outcome to third parties, with a few exceptions.
The fact of mediation can be referred to in a subsequent court proceeding, or in equivalent proceedings.
If a New Zealand court or else a decision-making body of competent jurisdiction orders the disclosure; or else, the Commission, the mediator, or either of the parties is compelled to disclose information by applicable laws or regulations, then the requested information will be supplied.
Employees and agents of the Commission involved in mediation cannot be brought as witnesses.
What if I think mediation isn’t working?
Both sides have the right to withdraw from the process, at any time, after consultation with the mediator.
If you abandon the process notice to anyone, this can be taken into account elsewhere. Remember: cooperation is key <hyperlink to code of conduct>.
Mediator can terminate
After consultation with the parties, the mediator is able to terminate the mediation if they feel unable to assist the parties achieve resolution of the issues.
I want more mediation
Sometimes we change our minds.
If both parties agree that that the settlement agreement needs to be adjusted (because they want it to be binding) they should attempt to adjust the agreement themselves and submit it to the Commission for consideration to become a binding agreement.
Mediation is a free service, but experts are paid for their time.
A second round of mediation is possible, subject to the availability of resources and approval to proceed.
An Expert decision is not always necessary to resolve your dispute with a domain name holder.
The Domain Name Commission welcomes parties to negotiate and mediate to reach an agreement.
Negotiation is not a formal process and it requires the two parties to meet and attempt to reach an agreement.
Mediation is an informal mediation process using independent mediators. It is a free service offered by the Domain Name Commission. While a negotiation is held between the parties, a mediation involves a third party (mediator) who would take an impartial position to help reach an agreement.
The mediation is voluntary and any agreements reached within mediation must be in writing in order for them to be enforceable.
Mediation can only take place if the current registrant has filed a response to the complaint laid against them within the required timeframe. The complainant will also be given an opportunity to reply. In situations where both parties are willing to enter mediation, the mediation period will not exceed ten working days.
If mediation results in a settlement where the domain name is to be transferred from one party to the other, it is for the parties themselves to contact the registrar and process the change of registrant.
If neither process works and the issue goes to the Expert for determination, the discussion had in mediation and/or negotiation is confidential and cannot be discussed with the Expert or other third parties, unless in rare occasions where both parties agree to reveal that information.