Rights or Interests?

Who is in the right? A 'win-lose' approach

Procedures for dealing with disputes in HEIs have invariably been set up adversarially, with the purpose of reaching 'finality' in the form of a determination which will 'exhaust' the procedures and end the matter. The question the procedures try to answer is who is in the right. This has a number of disadvantages. Some of the disadvantages are inherent in a 'rights' based approach and some arise with particular sharpness in the running of universities.

  • The university runs the process, so the student or employee is suspicious that there will not be a 'fair trial', because 'all the senior administrators and academics know one another'.
  • 'Polarisation' of positions is inevitable in an adversarial process.
  • Confusion can arise as to who the 'parties' are. The institution may treat its senior figures as though they 'were' the university, and even provide free legal representation by the university's solicitors. Yet when the complaint or grievance is against a particular person this may be inappropriate.
  • The task of 'being the judge' is commonly entrusted to a senior figure regarded by the institution as a 'safe pair of hands', but he or she may be inexperienced in presiding over hearings and often someone who has not received appropriate training.
  • In a high proportion of cases the finding goes against the complainant, and that leads to internal appeal and possibly to litigation, prolonging the dispute.

What is in everyone's 'interest'? A 'win-win' approach

An interests-based approach can avoid these difficulties. The ‘rights’ of the parties do not need to come into it at all, only what they are looking for by way of a solution. An 'interests-based' solution leads to a voluntary agreement by the parties. The agreement may result in a formal binding settlement, but the process of arriving at it does not involve one side ‘winning’ and the other side ‘losing’. There can be a 'win-win' solution.

The only major restriction on the possibility of approaching things in this way may be the requirements of the university's statutes. (For example, it is by no means clear that once a disciplinary process is begun against a member of the academic staff in an 'old' university, it can be discontinued by mutual agreement.)

Remedies and solutions available by 'rights-based' or 'interests-based' approaches

Applying the 'rights or interests' distinction will produce different kinds of possible solution and awareness of these differences may help to clear the minds of the combatants about what they want to achieve and what they can hope to achieve.

Rights-based outcomes

  • 'Remedies' at the end of formal 'rights-based' procedures are usually limited in scope, whether these are conducted internally or through courts and tribunals.
  • Someone has to lose and the outcome may be unpredictable.

Interests-based outcomes

  • Possible solutions and remedies are limited in their scope only by the wishes of the parties and any statutory restrictions.
  • The parties remain in control of the outcome and there should be no nasty surprises.
  • There is a better chance of continuation of the employment or student contractual relationship on agreed terms.
  • It may be possible to agree to the rerunning of a flawed process or procedure
  • Apologies which it is 'safe' for the institution to make can be agreed
  • There can be discussion of improvement in the way the institution conducts itself and the way it deals with disputes.

The value of preliminary discussion of options

An informal 'pre-trial conference' (not to be confused with a Without Prejudice Meeting)may provide an opportunity to come to an agreed set of facts, to narrow issues, and to settle key procedural questions such as setting appropriate time-limits for the presentation of witnesses and the length of the hearing. Holding settlement conferences has been found in Canada to be particularly well suited to some kinds of multi-party disputes and it is now encouraged by courts and tribunals in the UK.

Considerable clear-headedness is needed if this is also to be treated as an opportunity to encourage everyone to consider alternative dispute resolution but it is self-evidently a sensible idea to try.

Universities should also consider whether to build in a requirement to attempt an alternative route before continuing to follow the rights-based procedures. This raises an important question of principle, because mediation is essentially a voluntary process, but there is a difference between expecting an attempt to be made and imposing an adjudication:

Requiring attempts at alternative dispute resolution increases experience about the benefits of using collaborative dispute resolution processes for the HEI.

Potential cost savings come from:

  • economies of scale
  • earlier settlement while the dispute is less complex and substantial costs have not yet been incurred.

For another view on the 'rights or interests' question, see http://www.asauk.org.uk/fileLibrary/pdf/doing.pdf