Talk:Archive:Ombudsman Appeals

Gareth, I must question some of this interpretation. From my understanding of the Charter text, and I drafted some of these sections, it was never the intent to have the Ombudsman be, other than in an extremely narrow sense, the final authority for appeals.

The model was, to a certain extent, taken from that of the U.S.Senate, where the Vice-President can only vote to break ties, although he may preside. In the case of the Appeals procedure, the preferred outcome would be that the MC designee and the EC designee would agree on the disposition of the appeal, so the Ombudsman would not need to vote. If they disagreed, the Ombudsman would break the tie, but even then, it's not a matter of the OMB making a ruling -- it's a matter of the OMB supporting the position of one designee.

My personal opinion, from the Charter work, is it was never expected for the OMB to be proactive, to be the authorityon interpreting the Charter, etc. If anyone was to be proactive, it was the ME. Some of the things we have experienced were not expected, and we need either interim rules or Chart amendments to deal with them.

For example, a mediator has to have the appearance and reality of neutrality. We don't want to cut off your wise comments, but I don't think the same person can be an early participant in increasingly heated discussion, and then try to mediate. What I believe would be a reasonable approach, if the OMB proper wanted to enter discussion, would be first to appoint an alternate mediator who will not participate in general discussion, but would act if mediation is requested. Personally, I don't think this needs the Charter to be amended, but others may not agree. Howard C. Berkowitz 16:38, 26 December 2010 (UTC)

That's exactly what I've said. I'm the final authority for appeals, no more. But those appeals have to be based on interpretation of the rules and the Charter. It's foolish to think that the Charter has to be modified or a new rule established in every case, the role of every judicial system is to interpret the law as written, and the law is changed only to alter interpretation built up by practice and precedent. It's my job to decide whether to hear appeals, and that decision has to be based on interpretation of rules and Charter. If there is a prima face case based on that interpretation, then there'll be an Appeals tribunal which itself will have to act by interpreting the rules and Charter. Those decisions then form precedents, that can only be changed by new rules and modifications to the Charter.

As for my role in mediation, that's only possible where the parties agree to my mediation. If I'm not asked, I have no role in mediation. But whether I'm asked or not, I have the same role as a Citizen to comment, and I never act as Ombudsman without declaring that. As you say, if you want mediation by someone else, then I will ask someone else, if the disputants also want mediation. But I haven't received any request from anyone in the case of Adolf Hitler.

You seem to be saying that if something can be seen to be inconsistent with the rules or Charter then it's inconsistent with the rules or Charter. No. If it can be seen to be consistent with rules or the Charter then it's consistent with the rules or Charter. That's where I stand.

On neutrality; there's nowhere that says I must be neutral in disputes; I'm not. I'm on the side of the rules and Charter. If I'm called to mediate, it's to help parties come to an agreement, and whatever my views are on the issues in dispute, they are irrelevant. I either succeed or fail in that. If I'm called to make an interim decision, I have no intention of deciding grey where the choice is black or white. There is no neutral position in matters of objective fact, and no sense in a position that is an untenable intermediate.

On interventions. I don't think it's in anyone's interests to let mis-statements about process and rules go uncorrected, and as I have an inescapable role in knowing the rules, and as my interpretation of them will determine whether there is any basis for appeals, then it seems wise to be clear on exactly what my interpretation is, not least because this allows the Councils to change those roles knowing how they will be interpreted in the event of an appeal.

Gareth Leng 17:14, 26 December 2010 (UTC)

With hindsight, this situation could well have been mediated if the participants either were not, or ignored that they were, EC members. The very first interactions were, indeed, on a Citizen-to-Citizen basis but needed clarification. Very quickly, however, others made threats to bring it to the EC. I would have been willing to accept _focused_ mediation at that point, although had you commented before mediation started, I would have asked you to appoint a delegate. I can think of several people who could, I think, do a good job.

The good news is that I think the EC is doing a reasonable job of trying to find solutions, much less emotionally than in other matters. Sometimes, even though the introduction of a matter was not a good idea with hindsight, it may be better to let it go to completion, in a timely matter, rather than leaving unsolved tensions.

When I say "focused mediation", I mean to restrict the mediation to the point at hand. The only particularly specific comments principally regarded the lede, and also an argument that I never had time to adddress, that there was too much military. In fact, I started making lede changes within an hour after Ro made an actionable suggestion. Frankly, I was too busy both trying to keep the entire article being reverted when no objections had been raised to major parts, and also, to some extent, fending off personal attacks relating to style. I can't swear that the cluster issue first came up on the talk or EC page, but there seemed to be an unwillingness to hear that some of the solutions would have unexpected technical effects.

Respectfully, Gareth, I think I know the Charter as well as you, in part helped by knowing the intent during the drafting. I don't see anything in the Charter about the Ombudsman being the parliamentary or constitutional authority. I recognize that some Citizens have asked you to rule on it, but there's no such formal position. Perhaps we need such a role, but we don't have it now. Howard C. Berkowitz 19:39, 26 December 2010 (UTC)

Whether intended or not, any Appeal hearing are likely to involve issues of interpretation of rules or the Charter. I have no role in making those rules, and want none. However, an Appeals tribunal, which should rarely be needed (hopefully never) will then be the final arbitor of the interpretation of the Charter and rules as they apply in that case. That interpretation will then set a precedent, that can be changed only by a change in the rules or Charter. It would be ludicrous to conceive of an Appeals tribunal returning to either Council for them to rule on an interpretation of the relevant rules or Charter before coming to a decision; sheer nonsense. It doesn't matter what was intended by the Charter; that's the effect, and what I'm doing here is making that clear in advance of any dispute or appeal process. I'm also giving a very clear indication, independent of any particular dispute, of exactly how I will view appeals. Of course I will be only one of three in an appeals Tribunal, but I can't conceive of any tribunal being able to function effectively in any other way.Gareth Leng 20:52, 26 December 2010 (UTC)