Why Invest Money in Students
When the College Can Squander it on Disputes?
Paul Randolph examines the benefits of Mediation for handling disputes
in Higher Education, and explains how Regents College is tackling the issue.
Most Universities, Colleges and other academic institutions will find themselves in a disagreeable dispute at some time in their existence - whether with students about their complaints, or Faculty and staff on contractual issues, or with Trustees and Governing Bodies.
Such disputes drain the academic institution of the three most valuable commodities it needs: time, energy and money. And the protracted litigation that invariably accompanies such disputes can be seriously destructive - destroying morale, efficiency and productivity, which in turn can harm the family life and health of all those involved.
Disputes involving academia seem to precipitate powerful emotions. Education can represent a dual level of emotional value: the sentimental value of that very special and cherished portion of a student"s life, and the economic value of a potentially life-changing qualification. Furthermore, the professional reputation of the institution, or the intellectual integrity of one or more of its Faculty or staff, is invariably at stake. All this tends to render disputes in higher education highly emotional affairs.
In Academia, disputing parties become easily entrenched
The problem is that when emotions run high, disputing parties can sometimes act and react illogically and irrationally. They may no longer see sense, or act in their own best commercial interests, but may rather be prepared to go to extremes - to achieve "justice" and "fairness" and will go "all the way", and wage war on "matters of principal".
It is in these circumstances that universities and colleges and their students may become deeply entrenched and not so susceptible to the rational advice of their lawyers, their experts, their family or their friends. Both sides may feel that the only way forward is to get the dispute before a Court or Tribunal - where the judge will instantly recognize that they are right, where their stance will be completely vindicated, and where the other party will be publicly castigated and humiliated by the Court
But those who have been through the litigation process know that this simply does not happen. "Going to court" is a costly and damaging affair. According to a survey carried out many years ago by Dame Professor Hazel Genn, 65% of successful litigants were dissatisfied with the outcome: either they had not received adequate compensation, or it had taken too long, or it had been too costly and too damaging.
Can Mediation be the answer?
Mediation can address all these issues:
The following two examples of recent cases, both of which arose from relatively minor disputes, but ended up in protracted and costly litigation, may serve to illustrate the dangers of failing effectively to deal with conflicts in the academic environment at an early stage.
In September 2004, a student enrolled on a degree course at Salford University. She suffered from a sleep disorder (which included a general tendency to fall asleep during the afternoons), which she had declared her on her UCAS application form, and which was acknowledged as a disability under the Disability Discrimination Act 1995. The University assessed her needs and made a number of recommendations. However, problems arose in their implementation, resulting in her being unable to sit certain examinations in January 2005. In March 2005, she lodged an internal complaint with the University, including an allegation that she had developed Irritable Bowel Syndrome as a result of the stress caused by the University"s failures to accommodate her sleep disorder. The Academic Registrar investigated her complaint and accepted that a number of matters were not handled satisfactorily. The University offered an apology and payment of her tuition fees for a repeat year. She was not satisfied with that outcome - stating it was "wholly unacceptable" and that "Due to the university's mistakes my hopes of gaining a degree have been demolished." She complained to Office of the Independent Adjudicator (OIA), asserting that the university had discriminated against her and not acted fairly or reasonably in its decision. There followed five years of litigation, in which both the University and the OIA were dragged through the courts on a disability discrimination claim. In his judgment, delivered on 23rd July 2010, the Judge of the Administrative Court stated: "Whilst I recognise the desire of an HEI that becomes involved in a matter of this nature not to add to the expenditure involved in resolving it, particularly if it feels that it has not been guilty of discrimination, the engagement of a suitable mediator at an early stage could result in a rapid and satisfactory resolution from the point of view of all parties before positions become entrenched. It is a process that ought not to be overlooked".
In another similar case, a relatively trivial internal disagreement at Bournemouth University raised in October 2006, was finally determined in the Court of Appeal in February 2010:
An eminent Professor, in marking examination papers, had failed a high proportion of the students. A second marker endorsed his marks and the University's Board of Examiners confirmed the results. However, the chair of the Board of Examiners arranged for the papers to be re-marked, which elevated some of the scores. The Professor objected and an inquiry was held. The inquiry vindicated the Professor, but he nevertheless resigned and brought proceedings for constructive dismissal. The employment tribunal found in his favour; so the University appealed. The Employment Appeal Tribunal found in the University"s favour; and so the Professor appealed to the Court of Appeal; there, the Professor"s claim and the decision of the original tribunal were upheld.
One can only speculate as to the amount of time, energy and costs that were wasted by both sides in this 3-year long "yo-yo" through the Court system - whereas the dispute might readily have settled in one day at the outset, with a trained mediator - and no lawyers involved.
So how and why does Mediation work?
Mediation is an entirely informal process, with no rules of evidence or procedure. It can be conducted anywhere - in an office, a class room - or even in a wine bar. More importantly perhaps, mediation skills are most readily transportable, and can be utilized in any situation where two or more people are in conflict with each other.
Mediation can succeed where negotiations have failed. Negotiation, especially when conducted by lawyers, union representatives, or other third parties, tends to be "strategic and positional". Both sides initially put forward extreme positions, in anticipation of being whittled back. But extreme positions demand justification, and as both sides seek to justify these positions, they each dig their holes a little deeper, culminating in each party accusing the other of being unreasonable, uncooperative and intransigent.
A trained mediator can effectively deal with the "baggage" which parties sometimes bring to the dispute, and thus cut through the emotional and psychological blockages that so often prevent parties reaching an amicable settlement. In the present credit crunch, it is economically and commercially indefensible to enter unnecessarily into lengthy litigation. It makes business sense to try to mediate - and as early as possible, even before a dispute has got anywhere near the lawyers!
The mediator is not a judge but a facilitator
The first and most important feature of mediation is that the mediator is neither a Judge nor an Adjudicator nor an Arbitrator - but simply a "facilitator". The mediator cannot order or impose a solution or a judgment upon an unwilling party; but rather the mediator is there to simply to assist the parties in arriving at their own agreed resolution. The beauty of this is that the parties retain total control over the outcome - if they do not like a proposed resolution, they need not accept it.
Furthermore, the entire mediation process is confidential and "without prejudice". This means that the parties avoid "washing their dirty linen in public", as they would in a court, and are also able to air their grievances in a totally confidential environment; nothing said or revealed in mediation is admissible in any subsequent court hearing, should the mediation not result in a settlement.
The mediation itself usually starts with all parties together around a table in a "joint session", the mediator having previously spoken to each of them in privately. This joint session provides them with an opportunity to have their say, openly and frankly, and if necessary to "vent" their feelings about the dispute and the other party.
This is a vital constituent of the mediation process, and its effect can be most therapeutic. It may be the first time that the parties meet face-to-face; or it may be the first time that they have had an opportunity to hear the other side"s story first hand, rather than filtered, repeated, and analysed by a number of intermediaries. And sometimes it is the first opportunity to see the other side"s lawyers or advisers "in action" - often a salutary experience.
Take the following example:
Four University students complained incessantly about their accommodation to the Registrar. The Dean had built up an impression of the girl students as "spoiled pampered brats" for whom "nothing was good enough". In turn, the girls perceived the Vice Chancellor of the University as uncaring, callous and dismissive. At the opening session of the mediation, both sides were able to see that the true villain of the piece was the accommodation letting agent, and that each side had in fact tried to behave reasonably and responsibly. Moreover the students were able to discover that the University"s solicitor, whom they had demonised as both "stupid and confrontational", was in fact both sensible and fair. The various areas of dispute were resolved in half a day, and the relationship between the University and the students was cemented for the future.
Private "caucus" sessions
After the opening session of the mediation, when all have had their say, the process moves to "private sessions", where the mediator shuttles back and forth between the parties, discussing and exploring with them the underlying aspects of the dispute, seeking eventually to find common ground. This exploratory phase is, again, a crucial element of the mediation process, where many hidden agendas are revealed and misperceptions uncovered.
A further important feature is that each party can withdraw or change their minds at any time without penalty. It is not until the parties sign some form of "Settlement Agreement" that the entire process may become legally binding. Once the agreement is signed, it has the validity of a contract or court order which a judge can enforce. And after signing, the only matter that remains to be decided is who buys the drinks!
The Approach of the School of Psychotherapy & Counselling Psychology at Regent"s College
In recognition of all the above, the SPCP has instituted a series of short introductory courses on mediation and conflict management for the managers and staff throughout Regents College. Building upon the highly successful mediation courses conducted by the SPCP since 1999, the School is training the College managers in more effective methods of conflict avoidance and complaint handling.
The delegates on these courses are reminded of the importance of "active listening", and to acknowledge the strong desire on the part of students and staff to be truly "heard". The delegates are informed of the need to acknowledge and appreciate emotions; and they are taught how to address all these issues with a renewed understanding of the crucial role that self-esteem and "sedimented" value systems play in such conflicts. In essence, the managers are provided with the tools for a refreshed awareness of how these emotional issues affect behaviour in conflict situations. Thus, the next occasion they are minded to give a student or a member of staff a "good talking to", they will instead give them a "good psychotherapeutically-informed "listening to"!
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Paul Randolph is a barrister and Course Leader
on the Mediation Skills course taught at
the School of Psychotherapy & Counselling
at Regent"s College, London.