[WikiEN-l] Wikiquette "committee"

Sun Oct 5 05:13:16 UTC 2003

From: "Jimmy Wales" <jwales at joey.bomis.com>

> With arbitration, where actual votes on judicial outcomes will be
> likely, is strikes me that 'en banc' hearings are going to be best at
> first, with '3 judge panels' being appointed later on if the caseload
> actually demands it.

My only concern is that if one party to arbitation has taken away
the right to chose an arbitrator this is seen as undue influence or
duress. If they have a choice amongst qualified arbitrators and
the arbitrators are of differing points of view (some more sympathetic
than others as can be culled from their prior posts of Wikipedia)
then there is some amount of fairness or due process. Remember
that the basis of arbitration is contract law, not any kind of 
state sovereignity. We are working on it though ;-).

The only other alternative is to have the committee chosen by
some "random" process. In the SDNY judges are assigned to
cases with one of those bingo or lotto ball type cages where 
the different judges are each assigned a number, so you can't 
choose your judge, but neither can the other side. This is
a commonplace process in US courts.
> 
> My thinking is that we will have a quorum requirement (to account for
> the fact that people go on vacation or have periods of inattention) on
> votes, but that all arbitrators will vote on all cases when possible.
> 
Once again I am worried that this has less legitimacy than some
form of randomness or some ability for the accused to chose an
arbitrator so that the accused does not feel coerced into a process
in which choice has been completely removed from the user (if
the accused user is someone who is part of the process of creating
the procedure I would say that would be o.k. to submit one's will
to the committe, but at least some people who might face bans
are people who have not yet contributed to Wikipedia and thus
they will not in any way participate in this process of forming
mediation or arbitration committees.

BTW arbitrators are usually allowed to make their own rules
as long as they exhibit a minimum of fairness or due process such
as giving both sides an opportunity to makes submissions to
the arbitrators.

It is important to keep this in mind because by creating an
arbitration system you are giving a banned user the
possibility of submiting such a decision to a court of competent
jurisdiction to review and either set aside the arbitration decision
or to confirm it (sorry Jimbo even though you are almost a God
King to us all, beyond the realm of Wikipedia there are other even
greater powers that we must bow to).  Usuallyarbitration decisions
are overturned when the process is totally without reason or 
it is something that the parties did not really agree to 
(all the more reason to have somethiing like the proposed 
Submission Standards (or Terms and Conditions in mav's
 nomenclature). Key to agreeing on arbitration is that 
it is of a basic form that has some similarities to generally 
accepted arbitration schemes. Such as the mutually agreed
upon arbitrator or third member chosen by first two members
and that the arbitrators also have a chance to consider
objections to the rules or create a process that has some
responsiveness to the demands of the two sides seeking
a binding arbitration decision.

Regarding the rules, yes having the whole committee vote
on those rules is a good idea.

I would point out that en banc hearings are usually reserved
for appellate bodies so this begs the question:  Are you thinking
of a two level arbitration process (i.e. a preliminary decision
by one or three arbitrators appealable to the whole committee)
before you give the final yes/no ratification Jimbo? That could
have  another added feature much like the Cour de cassation
in France the appelate body could "break" the decision and
then send it back to another panel for review (in that case
the other panel should be chosen by random).

The reality is that reasonable people do disagree and it is
not bad that they do come to different decisions. In such
cases their decisions can be reviewed and confirmed or
overturned.

Alex756