Arbitration / Training
The Training Course for Case Managers and Arbitrators
Lesson 9 - Init Mailing: Presumptions - CCA / DRP Acceptance
The Arbitrator confirms that all parties accept the forum of dispute resolution.
From the experience, this is often a blocking factor especially by respondents.
Here is a proposal to convert the request into a presumption, and lay out sufficient evidence up front to support that presumption.
Following templates can be used by the Case Manager in writing your initial mail under point #1
"It is presumed that you, respondent <present or previous board member>, accept Arbitration under the terms of the CAcert Community Agreement and Dispute Resolution Policy, by presence and voting in committee motions m20070918.2, m20070918.3 and m20070918.4 (see section Risks, Liabilities, and Obligations of http://wiki.cacert.org/TopMinutes-20070917 ). If you disagree with this presumption, please reply to this email within the next 7 days."
"It is presumed that respondent <casemanager, arbitrator> accepts CCA, by role as Arbitrator under DPA."
"It is presumed that respondent <applications engineer, critical system admin, support engineer, triage member> accepts CCA, by role under SP."
"It is presumed that respondent <CAcert officer> accepts CCA, by role assigned by board."
"It is presumed that respondent <claimant in previous cases> accepts CCA, by appearance as claimant in previous Arbitrations."
- By which rules and/or policies is this covered ?
- What if a party explicitly denies acceptance of CCA/DRP?
- What is blocked by a pending answer to the initial mail?
BernhardFröhlich: I still don't get a grip on the importance of explicitly accepting CCA and DRP. Surely it is a good thing to have, but what if no answer arrives or CCA/DRP is explicitly denied?
Probably the explicit denial of either CCA or DRP is a reason to close a member's account. But what is the impact to the running case? Is it only that we'll have problems enforcing penalties on the (ex-)member, monetary and otherwise? Do we just say "We'll continue as usual, and then we'll see what you will do"?
If a Claimant refuses acceptance the case should be dismissed or modified into a "please close my account" case? Obviously we should not insist on CCA/DRP in "close my account" cases...
What about a non-member (everyone can issue a dispute)? Probably a non-member has to accept DRP, but does she also have to accept CCA? I guess if DRP is not accepted the Arbitrator will dismiss the case?
How about assuming acceptance for members in general? Or at least for members which have received at least one Assurance? Or who have received one Assurance since the new CAP form with the acceptance statement has been installed (let's say start of 2009)? Something like "Since you have requested at least one Assurance I assume that you accept CCA and DRP as stated on the CAP form."?
essential parts from within DRP an arbitrator has to check before a dispute starts: DRP 2.2 Preliminaries * Any parties that are not Users and are not bound by the CPS are given the opportunity to enter into CAcert and be bound by the CPS and these rules of arbitration. If these Non-Related Persons (NRPs) remain outside, their rights and remedies under CAcert's policies and forum are strictly limited to that specified in the Non-Related Persons -- Disclaimer and Licence. NRPs may proceed with Arbitration subject to preliminary orders of the Arbitrator. * Participating Users may not resign until the completion of the case. * The Arbitrator confirms that all parties accept the forum of dispute resolution * The Arbitrator may appoint experienced Assurers to assist and represent parties, especially for NRPs. DRP 2.3 Jurisdiction Jurisdiction - the right or power to hear and rule on disputes - is initially established by clauses in the User agreements for all CAcert Users. The agreement must establish: * That all Parties agree to binding Arbitration in CAcert's forum of dispute resolution; * for all disputes relating to activities within CAcert, issued certificates, roles and actions, etc; * as defined by these rules, including the selection of a single Arbitrator; * under the Law of NSW, Australia; and * the Parties keep email accounts in good working order. so under 2.2 its written as "all parties accept the forum of dispute resolution" but reviewing the text, this all is acceptance of CCA i.e. NRP vs. Members bound by CCA. For NRP's you have to move in a different way with such a case Non-Acceptance results in disable membership and therefore to move back to NRP state with the written procedure under 2.2 * The Arbitrator may appoint experienced Assurers to assist and represent parties, especially for NRPs so therefore its essential in the procedure to check CCA agreement, not only the DRP acceptance. This also includes members that entered CAcert before CCA starts. As there was no CCA roll out yet (read https://wiki.cacert.org/Brain/Study/COrbitCA), this becomes an essential step in the pre-arbitration phase, to check and confirm the CCA acceptance. This procedure under arbitration init is the pre-CCA-rollout procedure under which all members have to agree to CCA first, otherwise they are no longer members (->NRP).