Prevention and Cure

A university which wants to avoid disputes:

Actively seeks to prevent disputes. So

• It does not allow a senior academic or administrator to exercise powers of decision-making  affecting students or employees without adequate training.
• It  identifies potential problem-areas and clarifies underlying principles.  For example, it makes it clear to its students and employees when they enter into contracts with the university what they can and cannot do as 'entrepreneurs' and 'consultants'.
• It ensures there are good communications between students, employees and the administration and encourages the raising of questions at an early stage before a dispute emerges.

Actively seeks to end disputes as quickly as possible. So

• It encourages a culture of talking things through at an early stage when a disagreement or dispute begins, with recognised 'ground-rules' for such informal attempts.
• It ensures that complainants have someone who can help them assess their position and get  a clear picture of the nature of the problem and the avenues by which it may be addressed.
• It builds into its procedures appropriate options for resolving  conflicts informally.
• It makes sure these options can be ‘accessed’ by proposing an informal route to a solution, at any stage of a dispute by anyone involved.

Actively seeks to improve its dispute-resolution practice. So

• It seeks feedback from users of dispute-resolution options.  (What was helpful?   What was not helpful?  What made you consider the problem was solved?  What made the dispute drag on?  Was there adequate support for everyone involved?  Was everyone clear about his or her role in 'conducting' the dispute?

The basics of being prepared: fairness codes and the exercise of discretion

Not making procedural mistakes in the first place is the best way to avoid beginning a protracted dispute and the best way to ensure that such mistakes do not happen is to ensure that those in positions of authority know what to do and what not to do.

A fairness code

The conviction that there has been unfair treatment can be one of the strongest reasons for the prolongation and escalation of a dispute by an angry student or member of staff.

Different kinds of decision affecting individuals are made in universities, either directly or because they are members of a category, and they can give rise to a sense of injustice in a number of ways.

Checklist for preventing claims of 'unfairness'

• Ensure that there is adequate consultation
• Academic judgements affecting students ( examinations and assessments) and employees ( promotion of academic staff) should be made by a transparent process and on published criteria and reasons should be given.
• General administrative decisions affecting individual students, such as the decision to close down a course or change the course-options, should be made only with the consent of students, where appropriate.
• The student contract requires that students are offered the course they agreed to pay for and such decisions should never be made without obtaining the consent of students who will be affected.
• http://www.qaa.ac.uk/education/roundtable/COPsection5/default.asp contains a link to the current version of the Quality Assurance Agency's code of practice on Academic appeals and student complaints on academic matters, which is being brought up to date, and also links to legal advice on recent developments in this area.
• Administrative decisions affecting individual members of staff (for example to move a member of staff to a smaller room or to give or deny a member of staff an administrative responsibility upon which prospects of promotion may depend) should be made by a fair and transparent process. The contractual relationship is different here and the university should get it clear, if appropriate by agreement with the relevant unions) how far the working conditions of a member of staff may be varied without the consent of the individual concerned.
• Disciplinary decisions and decisions in grievance procedures should be made according to the rules of ‘natural justice’.

The rules of natural justice

Nemo iudex. The ‘bias’ rule: noone may be judge in his own case.

Checklist

• Noone who even appears to have any reason at all to prejudge the outcome should take part in the decision-making.
• The same person should not act as accuser, prosecutor, judge and jury. It is not uncommon for there to be confusions of this kind in staff and student disciplinary processes. For example, a person who has been confided in by a student should not take any part in a decision affecting that student without the student’s knowledge and consent and the student’s express permission to pass on the confidential information.

Audi alteram partem. The rule that both sides of the case should be heard

Checklist

• Noone should be tried in his or her absence
• Noone should be tried who has not been given notice of the charges against him or her.
• Everyone should see all the documents to be relied on.
• Everyone should have adequate time to prepare his or her case or defence
• Everyone should have an opportunity to text the evidence and question any witnesses brought by the other side.

Decision-making

It can be unclear to those in positions of authority in universities whether they have powers to take a particular decision. Once a head of department or senior administrator has made a decision which was actually beyond his or her powers (to dismiss someone without going through the proper procedures, for example) it becomes difficult to control the ensuing dispute.

Checklist

• Make it clear who is allowed to act on behalf of the university and in what circumstances.
• Set out in diagrammatic form the flow of delegation of powers ( and keep a chart on every office wall)
• Distinguish personal powers and powers of committees and clarify the rules for appointment to committees, decision-making by committees and any powers delegated to the chairman to act on behalf of the committee between meetings.
• Identify the powers which derive from the university’s constitution.
• Identify the powers which derive from the master-servant employment relationship within which a senior is line-manager of a junior.
• Identify the disciplinary powers over students which derive from the requirement that they enter into membership of the university ( pre-1992 universities )  by matriculation or at registration. Who exercises these powers?
• Distinguish the duties to students under ordinary consumer contract law. Who should be aware of these?
• Set out clearly for each category of decision-maker the rules governing the taking of the decision,whether they can be varied and in what circumstances and by whom.
• Draw up rules on ‘rigidity’ and ‘exceptional circumstances’
• Ensure that the decision-maker understands the limitations on the exercise of the discretion he or she has and neither exceeds them not asserts that he or she cannot do something when he or she can. (for example, promising an applicant a bursary or some other assistance on special terms without authority.)

Identifying the parties

The first problem in approaching a dispute by considering the 'interests' of the parties is to establish who the 'parties' are. It is not unusual for a senior academic or administrator to misjudge whether he or she is acting 'as the university' or on its behalf or may be personally responsible for his or her actions, at the stage when the dispute begins or escalates. Who needs to 'get round a table' and in what capacity? If a dispute is to be resolved everyone with an 'interest' needs to be involved in finding a resolution.

Some of the examples on the problem page illustrate the complexities that can present themselves in deciding who the 'parties' are and who should participate in any attempt at alternative dispute resolution. In Jan's case, was the Senior Tutor or the head of the college a party as an individual? Or were the parties just the original assailant and Jan himself? Was the College a party? Was the University a party?

If one of the parties is the HEI itself, who is to represent it round the table? Can that representative be given authority to agree a settlement or will proposals have to be referred back to a committee or a senior manager?

Other 'group-interests' (those of a trade union or student union, say) may also have their own ratification processes which will have to take place outside the forum where a provisional agreement is reached.

Preserving the balance of power

Many disputes are characterized by some degree of power imbalance.

A power difference may arise when:

• there is an inequality of age, race, class, sexual orientation, financial resources, or gender;
• only one party has a lawyer;
• one party is more emotionally vulnerable;
• one party is more anxious to settle;
• there are gender or culture-specific differences of expectation or ways of seeing the dispute;
• the parties are in a pre-existing relationship marked by an existing power differential (e.g. e.g. employer/employee, supervisor/student); or
• where self blame is present (some types of victimization, such as sexual harassment, are characterized by self blame) .
  (Reaching Resolution: a guide to designing public sector dispute resolution systems, British Columbia, Ministry of Attorney General, Justice Services Branch, slightly modified)
  

These and other factors need to be borne in mind in creating a 'level playing field' in the resolution of a dispute or a student or member of staff may be left with a lingering sense of injustice and continue to press the complaint, mediation is helpful in achieving a better balance of 'power' where some of those involved may perceive themselves to be at a disadvantage.

The creation of 'safe places' to explore solutions

The rules which protect the fairness with which a student or member of staff is treated can be set aside by mutual consent (if the university's statutes allow) within an agreed 'safe place' outside the formal procedures. It is possible to take 'time out' from a dispute so that those involved can consider their options and take stock, on the clear understanding that:

• if that does not lead to a resolution the formal rights-based processes can continue where they left off
• that no use will be made in any future process by anyone concerned of what has been said or revealed in the 'safe place'

This means that the 'rights-based' requirements of a 'fair trial' do not necessarily apply. There may be no need for production, testing and a full consideration of all the evidence. Nor is it necessary to find an independent 'judge'. All that is needed is a 'facilitator' the parties can trust.

Even when formal proceedings have begun internally (through a discipline or grievance process for staff or a student complaint ) or because the matter has gone to court, it may not be too late to go directly to a solution.

• Contact • Site Map • Disclaimer •