Many institutions now have salaried in-house legal staff who are qualified solicitors, with expertise ranging across the areas where the institution is likely to need specialist advice. The aim is to save on legal costs:
- by providing advice for managers and heads of department who are not sure how best to handle a problem when it arises
- by overseeing the conduct of attempts to resolve disputes and monitoring costs
- by providing an alternative to external legal advice, at least in the first instance, in areas where the institution is likely to be threatened with litigation, for example in employment tribunals, and in connection with procurement and contracts.
- by providing knowledgeable specialists in-house to advise on the design and drafting of procedures
- HEFCE approves of this use of HEFCE funding and it can be highly cost-effective.
- Are you using your legal services team to the best advantage?
- Have you made sure they consider alternative dispute resolution options every time and right at the beginning?
Do not reach for external solicitors too soon
Is it institutional policy that you must involve your Legal Services team before instructing external solicitors? Is this policy enforced? Who is in charge of instructing the institution’s solicitors?
Do your Legal Services team regularly check whether alternative dispute resolution is appropriate and ensure that the parties are reminded that they can ask for mediation?
The Office of the Independent Adjudicator has repeatedly spoken out against allowing students to bring lawyers into the process in conducting their complaints procedures:
We aim to promote a less legalistic approach to dispute resolution in higher education.
From the outset, our aim has been to give students a service that is user-friendly, so that there is no need for the expense and delay likely to be incurred by resort to legal services.
We have continued in our workshops and conference presentations to urge universities to adopt simpler procedures for resolving disputes and to avoid reliance on lawyers if possible.
If you do not have in-house legal advisors
Has your institution itself got into the habit of going to external legal advisers as soon as a dispute is threatened? Smaller institutions without in-house lawyers can become reliant on particular firms for advice. Apart from the danger of creeping costs-rise where this doesnot include negotiating a retainer or other cost-saving basis of payment, there is a danger that this sets a pattern for the conduct of the dispute.
Lawyers are trained to approach dispute-resolution in particular ways. The result is often to entrench positions, exacerbate the problem and ensure that it takes longer to resolve, or costs more to settle, and does more damage to the parties and the institution.
▪ They represent the institution, so they want it to ‘win’
▪ They are unlikely to be as familiar with the range of alternative dispute-resolution options as they are with the normal adversarial sequence.
▪ In employment disputes they will often tend to be more comfortable with negotiation towards a settlement than with mediation or an alternative route, aiming for a resolution.
Are you as a solicitor giving your institutional clients the best advice?
The profession as a whole is increasingly aware of the advantages of using alternative dispute resolution. Could you serve your client’s interest better by suggesting early resolution by mediation?
• Do you think outside the box and explore non-adversarial solutions?
• Do you regularly check whether alternative dispute resolution is appropriate and ensure that the parties are reminded that they can ask for mediation?
If you are a solicitor the odds are that you specialise either in representing institutions or in representing students or staff. If you represent students you are probably a specialist education solicitor. If you represent employees you are likely to be an employment specialist who also handles cases outside the world of further and higher education and for whom such cases are a comparative rarity.
What could you learn from changing sides and representing a party which is usually your opponent?
Keep your indemnity insurance under review
Are the terms of your institution’s legal indemnity insurance regularly revised and updated to cover new emerging risks in a period of rapid change in further and higher education?
Have you recently reconsidered the principles on which and the circumstances in which legal indemnity insurance is offered to senior officers of the institution?