Early dispute-resolution: the reality check

Do you need someone who can help disentangle the threads?

iStock_000007140379_ExtraSmallEarly neutral ‘evaluation’ is a well established concept in ‘alternative dispute resolution’. It usually involves appointing an experienced person to look at the details of a dispute and assess the likely outcome. This can act as a ‘reality check’ for both sides and provide a useful basis for discussing a settlement.

In the UK an Ombudsman is typically a last resort when a complaints process has been exhausted.  In other parts of the world a ‘campus ombudsman’ can act as a first stage contact for a student or member of staff with a complaint or grievance.  This is a role which can be created in a UK university or higher education provider.  Such an internal Assessor  or ‘Campus Ombudsman’ can do several things:

  • help the complainant to focus the complaint and identify what is being asked for
  • act as a broker ( if the complainant wishes) to try to find a way to speedy resolution of the complaint
  • if the complaint suggests that there may be ‘systemic’ problems in the institution, raise those general concerns with the management

Identifying all aspects of a dispute is only part of the task. It is also important to stand back and try to see what may be the most important element and where is the end of the tangle which if it is pulled can unravel the whole.

Under the Higher Education Act 2004, the statutory Office of the Independent Adjudicator now fufils some of the functions of a national ‘ombudsman’ for students in higher education.  There is still no counterpart for employees.

An internal post is different in its problem-solving potential for an institution from resort to a national or external office-holder. An in-house ‘early neutral Assessor’ always on hand when needed,  approachable by any student or employee or manager seeking help in dealing with a dispute, can look at the evidence, consider the facts of the case and its merits, and help the parties think through the routes by which the dispute could be resolved or pursued further if necessary.

The importance of perceived independence

The Assessor or Ombudsman should be:

  • Someone everyone involved will accept as neutral, that is, independent, and will therefore trust
  • Someone who can listen what the parties want to say about the way they perceive the dispute
  • Someone working to a clear published code of conduct with reference to maintaining confidentiality when entrusted with information by parties to disputes
  • Someone who can be asked to help at an early stage
  • Someone who thoroughly understands the structure, procedures and operational patterns of the institution and can therefore assess the problem
  • Someone sufficiently senior to command the respect of senior administrators and academics as well as approachable enough for students to feel comfortable with
  • Someone who can act as a dispute manager and disentangle the strands in a dispute and help those involved to see how each could be resolved, and what could easily be set aside of something else was dealt with
  • Someone who can help the institution learn lessons so as to avoid getting into the same situation again

Students and staff with complaints and grievances may need reassurance:

  • that the Assessor is ‘assessing’ the dispute and the best way to resolve it in everyone’s interests and not adjudicating, and
  • that the Assessor  is not automatically on the institution’s ‘side’ and is acting independently and dispassionately

A student Advisor or Student Union officer can be very helpful in this role.

A trusted independent neutral figure can help both sides to get a clearer picture of what it is ‘really all about’, or what can and what cannot be followed-up through formal internal procedures or litigation. By providing a ‘reality check’ about the amount of time and stress and cost likely to be involved,  he or she can encourage early resolution.He or she can ‘stop the juggernaut’ of the adversarial process at any time and wherever it has got to, but the sooner the better, and preferably before a formal procedure is initiated.

Learning lessons

Early neutral assessment can also help the institution to ‘learn lessons’, provided the parties are willing to allow general principles to be drawn from what has happened to them. It is often the case that a student or employee who has felt unjustly treated is anxious to ensure that ‘this does not happen to anyone else’ and is willing for lessons to be learned. For the institution, that can make it less likely that similar disputes will arise in future.

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