What is Mediation?

Mediation is only one of the options for 'alternative dispute resolution'.

It is likely to be the option which works best if what is sought is an 'interests-based' resolution.

It is very important that everyone involved understands the difference between mediation and arbitration and can 'place' mediation in the conspectus of options. The ways of resolving a dispute can be set out along a line which runs from voluntary agreement to accepting an imposed solution. At one extreme, courts and tribunals and most internal complaint, disciplinary and grievance procedures in HEIs 'impose' solutions by adjudicating between the parties.

Drawbacks

  • Someone has to lose.
  • The litigation route is slow and expensive and uncertain in its outcome.
  • The range of things the courts can order is very limited.
  • Courts and tribunals cannot 'resolve' the dispute, merely end it.

At the next point along the continuum, the parties can agree to accept the decision of an independent arbitrator or ask an expert to give an opinion and agree that they will abide by his or her recommendation.

This is a route which is likely to work best if the parties are reasonably equal. In university disputes the student or member of staff tends to feel 'powerless' against the institution. There is commonly a good deal of suspicion that any arbitrator or expert the university will accept will somehow be in its pocket. The 'Mafia' of expertise may justifiably be seen to include the academic network.

One of the most frequent problems in disputes in universities is that committees considering student complaints or staff grievances are likely to be perceived to be chaired  and manned by just such figures. The student or member of staff is in fact given no option but to accept what is almost a form of arbitration,  with an adjudication by a senior member or members of the university’s academic staff.  The procedures may allow a challenge to a particular choice, but not to the structure of adjudication itself.

The vast majority of findings in student complaints and staff grievances conducted in this way find that the institution is not at fault and the complaint is not upheld.  That resolves nothing. The student or member of staff is left with a sense of injustice and good working relations are not restored.

At the other end of the coninuum of possibilities, the parties can try to agree with one another with a mediator acting as a facilitator.

Mediation has the advantage for the student or member of staff that the inequality of power between the parties is partly levelled because the objective is to reach a voluntary agreement.  It can lead to finality because it allows for

  • informed decisions.
  • uncoerced decisions.

to be taken by everyone involved.

When is a dispute not suitable for mediation?

The attempt to arrive at an interests-based resolution through mediation may not be the best way forward:

  • if there is a matter of policy at stake
  • if there is an issue on which it is desirable to establish a precedent
  • if there are legal restrictions or the university's statutes impose restrictions on its actions, on a point which is 'non-negotiable' for the complainant.
  • if all the parties are not willing to make the attempt ( ideally 'voluntary' should mean 'committed' )
  • if a party is acting in bad faith, for example, trying to give the appearance of 'having tried' to avoid the displeasure of a court or to comply with a mandatory or contractual requirement to attempt mediation
  • if there are going to be consequences which are detrimental to those not involve or which will be unfair to them by comparison ( as in a special concession given to a student in dispute which is not available to others taking the same course).

The ground rules of mediation

  • the process is voluntary (all those who take part must be willing to do so), although there is a trend towards court-required mediation. HEIs may wish to consider whether to incorporate a normative expectation into their procedures or contracts with students and employees.
  • the parties agree on a 'facilitator' or mediator, who must be seen to be neutral and independent
  • the attempt at an 'interests-based' resolution does not compromise or prejudice the rights of those who take part to revert to an adversarial 'rights-based' procedure.
  • so that rights to take the issue further adversarially are not compromised,  the attempt at an 'interests-based' resolution must be made in a 'safe place'. This means that what is revealed in the discussion may not be used  by any party in any future proceedings without the consent of those affected, and that the discussion is confidential.  The confidentiality of any resulting agreement is for the parties to decide together.
  • but it must be explained to those taking part that certain revelations cannot be kept confidential, for example a breach of the money laundering or the child protection legislation.
  • any agreement must satisfy all the parties involved
  • those involved must have authority to 'settle' or to enter into an agreement preparatory to the drawing up of a formal settlement

The advantages

  • creative solutions are possible,  including options which are not available to courts or tribunals.  This is especially helpful in student cases and in academic staff cases, where financial compensation may not be all that  is sought.
  • it is possible to rebuild trust and improve damaged working relationships. Misunderstandings can be cleared up.  'Unfinished business' can be 'finished'. This is of particular importance in the university environment where simply ending the contractual relationship may not be straightforward.
  • if the contractual relationship is to be brought to an end this can be done on terms and with conditions which give the employee a fair chance of future employment (for example, by agreeing a reference).
  • it is possible to reach agreement about changes in practice for the future to meet the concerns of a complainant who has a sense of injustice about the conduct of procedures as well as about outcomes.
  • there is flexibility in the way the problem-solving is approached, without a requirement to go through fixed stages.
  • there is no need for any delay beyond the difficulty of finding a date everyone can manage

The role of the mediator or facilitator

The mediator or facilitator:

  • is not responsible for the content of any resolution or agreement, but only for the way it is arrived at
  • helps the parties to think through and state their own views of the problem and their own preferred solutions
  • ensures that all the parties have an equal chance to think through and state their own views of the problem
  • may challenge these initial explorations as appropriate
  • explores and tests possible agreement with the parties separately and together
  • helps if asked with the preliminary drafting of any agreement
  • helps if asked with the drafting of any feedback to the institution designed to assist it to avoid similar disputes in future.

Protecting the 'safe place'

Mediations protect the 'safe place'  by means of a pre-mediation agreement. One of its features is an agreement that whatever takes place or is said in the mediation will be confidential, subject to the recognition by everyone involved that if it emerges that there has been criminal activity confidentiality cannot be maintained.

It is important that it should be made clear at the outset whether a senior administrator representing the university who agrees to confidentiality will be 'sharing' any part of what is said or agreed with the university.  In practice this may mean that Human Resources or Personnel  will be informed or a head of department of someone with pastoral responsibility for the welfare of students.  When appraisal was introduced in universities for academic staff the original understanding was that it should be a 'safe' forum in which academics could discuss their work confidentially and agree a way forward with their appraiser.  Very soon appraisal documents were routinely being given to heads of department and line managers, used in promotion and upgrading processes and even in disciplinary processes.  That kind of drift is common and destructive of trust in a mediation.

The pre-mediation agreement is separate from any agreement arrived at as a result of the mediation, and it is for the parties to decide whether all or part of what is agreed is to remain confidential.  The use of gagging clauses is to be discouraged in Higher Education disputes.   The Higher Education Funding Council for England regards them as unacceptable in the case of  severance agreements involving senior staff because of the use of public money to 'pay off' departing figures.

There may need to be an agreement that Human Resources or Personnel    or a head of department of someone with pastoral responsibility for the welfare of students will come into the picture on the conclusion of an agreement to follow through its implications, but that should be made clear and be separate from any 'reporting back' on the mediation itse;f.

A statutory model: special educational needs

HE in FE and the possibility that students under the age of 18 may be admitted by HEIs may create additional responsibilities for HEIs which would usually apply only at the secondary stage. There is also the potential for disputes to arise in the area of dyslexia assessment where students do not raise the possibility that they need special arrangements because of dyslexia until they are already on a course.

In the case of the special educational needs of children,  there are requirements which assist in the resolution of disputes. There are no equivalent requirements for universities, but that does not prevent any university from choosing to  adopt  similar requirements for itself, with appropriate modifications.  Of these the role of the parents is perhaps the most important.  It was formerly the case that parents were unlikely to become involved in disputes with their student children.  That pattern is altering, as parents make substantial contributions to the financial support of students and to the payment of their tuition fees.

  • A local education authority must make arrangements which include the appointment of independent persons who can help in the resolution of disputes as neutral parties or facilitators
  • A local education authority must take the steps it thinks appropriate to make parents and schools aware of the existence of dispute resolution services.
    Education Act 1996 s.332B

Every maintained school is required to publish information about arrangements approved by its governing body to deal with complaints made by the parents of pupils with special educational needs. Education (Special Educational Needs) (Information) (England) Regulations 1999

The responsibilities of Local Education Authorities are set out in the SEN Code of Practice. They include

  • taking responsibility for the overall standard of the dispute resolution service and its quality assurance
  • funding
  • making sure that the arrangements for dispute resolution are known to those likely to need to use the service ( Education Act 1996  s.332B)
  • informing those likely to need to use the service know that their rights to continue with their complaint or appeal are not affected if the attempt is unsuccessful
  • establishing protocols and mechanisms of referral
  • establishing a service-level agreement for delivering the service to ensure that there are sufficient resources for training and delivery.
  • ensuring that there are adequate feedback mechanisms to inform future policy and practice.

SEN Code of Practice 2:25 (paraphrased and abbreviated)