1st Round Of DRS - Mediation

[retired_member6]

What is mediation? Is the case decided by the mediator?

Mediation is not the process by which a DRS case is decided and has no bearing on the outcome of any independent expert decision.

What's the point of the first round of the DRS if it can't conclude anything? does Nominet send a 'partisan' recommendation of a result to the expert? The above answers those, however...

Is it a good idea to not go all guns blazing in the first half and show your hand and instead wait until the second part before giving the Complainant a sniff at your defence? Perhaps a non reply would work in your favour, then the complainant only has his initial argument to go on and not your first half defence as a rebutal?

Is that how it works?

Are previous "Without Prejudice" discussions and correspondence treated as privileged and not considered in DRS proceedings?

Not necessarily; such correspondence may be put before an Expert, who is free to consider or not, as they see fit. Only discussions and correspondence taking place during the informal mediation stage of the DRS will not be revealed to, and will not be considered by, an Expert when making a decision.

I have a water tight case and will win however I am willing to see what the mediation stage offers me, I'm just trying to find out if sending a minimum response in the first instance is better, and then when the real complaint comes in DRS part 2 - the paid for sequel, then I can lay out my defence better.

Does the expert take into account the first half as well as the second or just the second? (I've noted mediation cannot be presented as evidence - points of discussion, not initial defence or complaint.)

If both then I can take advantage of some of the minor points of the complaint and then go in for the kill in the second part. Is there any way of ensuring the expert takes note of part one as well as part two? Doubling an effective defence, although I've not read how many words I get at DRS2 yet.

That then enables a two pronged attacking defence and doesn't leave the complainant knowing my whole defence strategy only for them to be more in the know at the second stage and I find myself on the back foot because I revealed too much in the first instance.

Does that make sense? is that how that can also work? Any advice gratefully received, I don't have the obvious advatange in this as I can't afford a solicitor's services.

 

[retired_member6]

The Response represents your only chance to put your case to the Independent Expert. You cannot add anything later, so make sure you put everything you need to in this Response form.

http://www.nominet.org.uk/disputes/drs/help/responses/

I've just seen the above, so what I have now received is the complainant's fully disclosed approach to get the domain under their control and they will not be able to add anything further? And my defence now is the what the expert will see if mediation fails and no other form of defence sent on my behalf can be added?

If that's correct then I've got even less time than I thought, however at least my first line of defence can't be used against me. It's getting better...

 

[tifosi]

http://www.nominet.org.uk/disputes/drs/help/responses/

I've just seen the above, so what I have now received is the complainant's fully disclosed approach to get the domain under their control and they will not be able to add anything further? And my defence now is the what the expert will see if mediation fails and no other form of defence sent on my behalf can be added?

If that's correct then I've got even less time than I thought, however at least my first line of defence can't be used against me. It's getting better...

Wrong. There is a standard set of procedures. First the complainant invokes the DRS and sends the details to the DRS. This starts the case notes - not checked for validity but just that they comply with the format (3copies/2000words etc).

Now the important bit. The respondant then gets the ONLY 'official' response to this complaint, to which the complainant gets to give a reply - but without any further evidence, with the exception of rejoinders to the respondants response.

If you're thinking of giving a weak reply in the response so you can wait for a stronger case after the mediation DON'T. The non-standard response after the mediation (in the case that the complainant pays up) is not official and the expert is well within their rights NOT to accept this.

All your evidence known at the time should be within the response. ALL the case notes from the complaint/response/reply are passed to the expert.

The mediator is there to get the 2 parties communicating. NOTHING they say goes to the expert. It's just a way of trying to reconcile the siutation.

Hope that helps.

Stephen

 

[EdPhillips]

Just to add to what Tifosi said, the mediation stage settles around 60% of the disputes that get to it, currently. To get to mediation you must submit some sort of response.

Mediation is an extremely powerful tool to settle disputes quickly and cheaply - and remember, if you settle at mediation, there will be no published decision, and the case is likely to be 3-4 weeks shorter.

 

[tifosi]

Thanks ed, I forgot about the non-published part and stats.

we'll turn them all into DRS gurus yet!!

 

[retired_member6]

So the complainant gets two bowls of ice cream? Another aspect which isn't fair. If I go back to my school days evens is fair, what next women getting paid less then men? What if there's yet more defamation of my character in their second bowl of ice cream? This is sickening. Has no one challenged these rules?

The complaint
The defence
The complaint returns and closes
The defence closes

Now that would be much better, I suppose it comes down to who deserves last impression and that's case by case isn't it? How does the complainant get a second chance to rebuff my claims and I can't close on their secondary claims? they're the buggers that brought the complaint in the first place, I suppose in this instance my defence has to better and simply ensure there is no second part or benefit to their complaint and closing statement.

Thanks Stephen and Ed, this is my way of sorting it out especially when I haven't exactly got a lot of time - 8 days, if I go through a list of words it won't make sense, going through in practice is the best way for me. I'm getting there. Then I'll do my workings, read their complaint again, read rules and regs and supply supporting exhibits and make sure my rear is covered, which I'm sure it is anyway, I've not done anything wrong plus it would be drafty.

I've had one sleepless night already over the accusation and assualt on my good character.

 

[FC Domains]

The biggest problem is that the complainant just gets the chance to test the water, whereas the registrant has to then respond with their full, final and considered defence. This takes a lot of time and effort.

Maybe the registrant should be able to defer their full response, if they don't want to take part in mediation. This might eventually count against them, but would weed out the hopeless cases.
The only two I've had have backed off and not paid for DRS. Whereas I had to spend hours presenting a case and sending paperwork back and forth, on a tight schedule.

And please can we have it pointed out in the DRS FAQ that domain name trading is an acceptable business and the complainant issuing personal attacks against the registrant is not acceptable.

 

[tifosi]

don't expect it to be a happy backslapping event. Treat it as an attempted business takeover.

Yes the complainant gets 2bites at the cherry, but the reply can't contain 'new' evidence.

You do get the Non-Standard response, which if in the correct format, and in a compelling format (the expert sees a summary paragraph explaining its necessity) then its likely to be passed to them.

And to add to Colin:
1. Domain trading - acceptable
2. Domain parking - acceptable (withing the caveat of business infringement, which is extremely unlikely)
3. Liability for counter libel if the complaint is a personal attack.

S

 

[retired_member6]

It's got to be said though, the cats love the folder and paper that come with the documents so if I lose the domain at least the cats have something to play with, they've chewed it half to bits already.

 

[Beasty]

Yes the complainant gets 2bites at the cherry, but the reply can't contain 'new' evidence.

That's not strictly true - it may well be what was meant - but DRS Procedure 6(a) which deals with the Reply does not say you can not enter new evidence at that stage.

 

[tifosi]

http://www.nic.uk/disputes/drs/help/replies/ explains what the reply is for: "The purpose of a reply is to deal with any new issues which have arisen in the Respondent's response. You should therefore not seek to repeat any allegations made in the complaint, but should only address any new points raised in the response. Evidence should be submitted to back up any assertions that you make."

As you may have noticed, some do introduce new points. I guess it's hard not too. If there really is something substantially new and a Respondent feels they need to submit a response to rebuff it then http://www.nic.uk/disputes/drs/help/furthersubmissions/ explains further submissions.

That's what I meant.

 

[retired_member6]

Invincible thanks for your reply at 09:26pm but this has already been covered and as for not knowing the DRS ins and outs, you're correct I don't, hence the need for good replies not just put downs.

I'm a practical person, lists of words and mumbo jumbo mean very little to me.

 

[Beasty]

http://www.nic.uk/disputes/drs/help/replies/ explains what the reply is for: "The purpose of a reply is to deal with any new issues which have arisen in the Respondent's response. You should therefore not seek to repeat any allegations made in the complaint, but should only address any new points raised in the response. Evidence should be submitted to back up any assertions that you make."

As you may have noticed, some do introduce new points. I guess it's hard not too. If there really is something substantially new and a Respondent feels they need to submit a response to rebuff it then http://www.nic.uk/disputes/drs/help/furthersubmissions/ explains further submissions.

I take your point - but the passages you refer to are the "Help" section on the Nominet site - not the actual rules or procedure - and so are not binding. You are right that a Respondent can try to rebuff any new points with further submissions - but only if they know they are allowed to try, and then only if the Expert decides to accept them.

I think we probably agree that it would be better if the DRS rules/procedure itself made the rules regarding the limits on the contents of the Reply clear.