Various terms and pairs of terms commonly cause difficulty or confusion in connection with disputes and dispute-resolution.
Appeal and Complaint
Complaints come before appeals. A complaint procedure should always have an ‘appeal’ stage to which the complainant can move on if he or she is not satisfied with the outcome of the complaint procedure.
It is particularly important that complaint about the delivery of a course or about anything which might affect the examination result should be made before taking an examination. It cannot usually be taken into account if it is mentioned in an appeal only after a student is dissatisfied with an examination result.
An appeal about an examination result should not normally taken into account anything which the examiners were unaware of and the student could have made them aware of when they conducted the assessment.
Appeal and Review
An appeal seeks to overturn the original decision. It substitutes a new decision.
An appeal will usually entitle the appellant to a hearing.
A review is a reconsideration of the original decision which may look at the way it was taken rather than the merits of the case and may recommend that the decision be taken again by the original decision-makers.
A review may be conducted ‘on the papers’ without a hearing.
In both cases the reviewing body is ‘higher’ than the original decision-makers and must be seen to be independent of them.
Equality of arms
Ensuring that a student or employee is not disadvantaged when in dispute with an institution is far from easy but fairness requires it and dispute resolution works better that way.
Fairness and Natural Justice
Natural Justice means observing the two traditional rules for ensuring a fair hearing. These are making sure that the person who makes the decision is independent and unbiased and ensuring that both sides of the case are heard, with a person who is accused being allowed to see the evidence and challenge it, for example by questioning witnesses.
Fairness is the general term which is now more usually used. You can find detailed material about Fairness under Institutions.
Discrimination and Victimisation
Discrimination means treating someone differently from others because of the sex or sexual orientation or race of that person or because the person is disabled, or because of the person’s age or for some other reason where the law provides protection against unfair treatment by reason of a particular characteristic.
Victimisation means reprisal against someone who has done a ‘protected act’, such as raising a concern in good faith about a matter covered by the institution’s Public Interest Disclosure code. If you complain of discrimination and suffer reprisal, you are being victimised.
Mediation and Arbitration
In mediation the parties are in control of the outcome and the mediator is a facilitator of their discussions, not a judge.
In arbitration the parties agree to appoint a judge and agree that they will abide by his decision.