From: "Ray Saintonge" <saintonge(a)telus.net>
Alex T. wrote:
>From: "Ray Saintonge" <saintonge(a)telus.net>
...
I have
no problem with this. What you quoted from me above was written
before your post making the distinction between mediation and
arbitration. Having someone who is representative of the accusers makes
sense, but there is a potential can of worms when the accusers start
arguing among themselves about who best represents their POV. :-)
Identifying the accused should seldom be a problem.
My proposal always intended the two procedures to be distinct, perhaps
that is clear to me in my verbosity because I know the difference
and know that they are basically very distinct approaches.
I think that the accusations can be presented to someone who
is chosen ( this person could be chosen by Jimbo), it should
not be people arguing over who is making the complaint,
there should be someone who decides if there is a complaint and
then they can go forward or reject it as a minor transgression,
otherwise everyone will be fighting about making allegations
and taking things to arbitration. That is not a method to calm
things down it we result in a lot of cross complaints of members
pointing the finger at each other IMO. A somewhat unconcerned
user will just review the complaints of users and then at a certain
point decide to go forward. I do not think we should have a system
of private prosecutions. There should be some investigative role
that is played and some discretion not to bring a complaint if the
users are not complaining enough about someone. Of course there
should be some guidelines about this, but I trust that serious cases
will get through to mediation and possibly arbitration.
...
One
possibility is that the accuser and accused would each choose one of
the arbitrators from the list of those available. The first two could
chose the third one together, or he could be named by Jimbo. . . . or
is that too cumbersome? A mediator would be disqualified from being an
arbitrator in the same case.
The idea of the third arbitrator being chosen by the first two is
to give the third one some impartiality. The arbitrator chosen by
the accused may be pro accused, and the arbitrator
chosen by the accuser may be pro banning, the idea is that
as arbitrators they will have to agree on someone that they
both believe they can convince. Having the third arbitrator
chosen by Jimbo would reduce that appearance of legitimacy
of the arbitration panel. I would either say Jimbo picks the
first one and if the accused thinks that person is fair they
go with one arbitrator (it is easier for one person to reach
a decision usually than three) but otherwise the accused
gets to pick the second one and the two arbitrators pick
a third. This is well recognized in the writings about
arbitration as a well established procedure for chosing
an arbitration panel and it is used in practically all arbitration
procedural rules. I agree that mediator and arbitrator must
be distinct in a case, a mediator should never arbitrate the
same case as the mediator may have information that
was disclosed in the mediation session that could compromise
the impartiality of the process.
...
In many of these situations we will probably need some
basic rules of
evidence and procedure.
True for arbitration but entirely inapplicable to mediation. It can be
extremely informal because it is private. People can say whatever
and be as irrational as they want. Sometimes venting like this serves
a purpose in mediation (remember it is private) in arbitration the
process or result is public (everyone knows the outcome).
Regarding the arbitration my proposal in short form is that
the petition is drafted by one group who is authorized to present
such petitions (or it can be a group of people who accept complaints
from all members). Of course it would have to be specific citing
specific pages, etc. There is no need for rules of evidence, everything
here on Wikipedia is evidence. I cannot imagine that anything outside
of Wikipedia has any relevance. There may be an issue of what
constitutes vandalism on talk pages for instance or abuse of
user talk pages but generally speaking the only evidence we have
is the wiki and its file history. That is what makes this such a
straightforward process. I cannot imagine what other documents
would ever have any merit (except if the problem leaks into
the talk pages but will that happen often, and even then the
talk pages are also archived so it is also in writing, there is
little case for these archives to be "fixed" unless some developer
goes crazy or starts accepting bribes -- such a scenario is
highly unlikely if technically impossible.
The procedure should be simple stuff like deadline dates and
text limits, i.e. your response cannot be any longer than X
characters. The decision must be rendered in Y days. We
could adapt it from the
adr.org rules for international
arbitration or something similar (the Quebec Code of Civil
Procedure has a very handy set of rules on arbitration.)
There are many examples that could easily be adapted.
Once some consensus about the structure of the process
is achieved a few of us can refactor it and draft the necessary
pages.
Also I would suggest that arbitration decisions not be based upon
other arbitration decisions (there may be exceptions and there
may develop a body of jurisprudence of arbitration decisions),
but that definitely there should be no binding precedent. The
arbitrators can but are not required to explain their decision, i.e,
the decision can be we decide not to ban user:ABC. It can
also be reasoned (probably better if they want a ban to
be upheld by Jimbo) i.e., we decide to ban user:EFG for
the following three reasons: a) b) c).
should carry a certain burden of proof. It is his
obligation to cite
the pages where the offences have taken place. No mediator or
arbitrator should be required to look at anything other than the stated
sites to help establish the accuser's case.
That is what an accusation is, and if the accusation is not sufficient
the arbitrators can just dismiss the complaint and in that case
I would argue that it should not be appealable by Jimbo
(this gives Jimbo some distance and it means that the decision
to keep a member can be made by members without any fear
that the power above us will take away our compassion towards
each other).
...
Illusion? Had this come from a person with poor
language skills I would
dismiss it as a typo. From Alex I can't be sure if the ambiguity was
intended.
...Lawyer's love ambiguity, it is our stock in trade...
I'm confident that Jimbo would use his royal prerogative wisely and
parsimoniously. To do otherwise would undermine the process that we are
discussing.
I have no doubt that Jimbo has the best interests of Wikipedia
at heart. Long live Jimbo!
Alex756