The necessity of mediation

Mediators are able to restore the lines of communication, rebuild relationships and get to root causes of problems, says Richard Peachey

By Richard Peachey, Dispute Resolution Consultant, CMP Resolutions

Universities are catching-up with other major employers in their use of mediation – the use of an independent third party to support conflicting individuals in finding agreement and reconciliation – training academics and other staff as mediators to deal with conflict and grievances. 

The use of mediation has become a norm and a necessity among large UK employers such as the NHS and the armed forces. Without these skills, workplace tensions can turn to resentment, tangles of politics, grievances, conflict and recourse to formal legal processes. With pressures ever-growing from TEF, REF, flexible contracts and from the need to provide more ‘services’ to students and external partners, the potential for disputes and disagreements among staff is increasing.

At the same time, the lack of standard HE contracts between institutions and students and the potential for universities to, for example, change course provision post-enrolment, opens up opportunities for legal challenges. In September 2015, the Office for the Independent Adjudicator’s ‘Good Practice Framework: handling student complaints and academic appeals’, came into effect for institutions providing HE in England and Wales. Under the framework, all academics and senior staff are expected to comply with the new rules when it comes to any student complaints relating to the delivery of teaching, support services, administration, facilities, or other aspects of the student’s relationship with the institution. 

As communities, universities are uniquely at risk when it comes to potential cases of sexual harassment: large concentrations of young adults exploring their new freedoms, both amongst themselves and while living and working alongside older, confident and often admired staff. The prevalence of the use of digital communications and social media has added another level of opportunity and complexity to the situation. In response, Universities UK set up its own taskforce in 2016 (‘Examining violence against women, harassment and hate crime affecting university students’), which highlighted how good practice is patchy and not always joined up, and was used as the basis for its guidelines on the better handling of misconduct by students.

In mediation, people are invited to say what they need from one another, and really hear one another, rather than say what they think of one another – so the quality of interaction from the mediator to the parties is crucial

In the context of this kind of complexity and a growing sense of ‘rights’ among both staff and students, mediation is becoming seen as a fundamental skill. In mediation, people are invited to say what they need from one another, and really hear one another, rather than say what they think of one another – so the quality of interaction from the mediator to the parties is crucial. Training equips people with a toolkit of approaches to reduce the stress of disputes, raising levels of confidence in handling difficult situations, and help their organisations limit all the different kinds of risks around relationship breakdowns. Mediators are able to restore the lines of communication, rebuild relationships and get to root causes.

CMP is working with a number of institutions to review and develop the way they handle complaints, in line with OIA and UUK guidelines as well as ‘whistleblowing’ best practice standards. The University of York put in place an in-house mediation service as part of a modernisation of its HR. It wanted a local and informal dispute process that could resolve situations quickly – reducing the amount of time associated with managing grievance cases among staff and be part of the support for improving performance management and employee wellbeing. CMP Resolutions was brought in to set up the service, delivering an initial briefing session on mediation and what was involved to a large group of staff. From this, people at different levels in the institution had the chance to put themselves forward for training. As part of the introduction of the service, work was undertaken on getting buy-in from both the senior management team and the Unions; mediation was positioned as a dedicated HR project with a project manager to actively develop and promote the service through a dedicated website and work with. Since the services was first set up in 2010 the mediation has become ‘normalised’ as a useful and standard option. The service has handled, on average, around 15 cases of mediation each year, with a very high success rate in terms of avoiding formal grievance processes.

Cardiff University revised its Student Complaints and Fitness to Practise procedures and backed this up with an intensive training programme for more than 60 academics across departments – staff who are now equipped to take on the role of investigator, able to deal with the range of student complaints in line with institution processes and the OIA framework. CMP delivered a foundation course, covering the skills and knowledge necessary to understand the investigation process and how to make it consistent, resilient and fair; common pitfalls; gathering and weighing evidence; and report writing.

An institution’s approach to complaints needs to work – and be seen to work – for all staff, the student population, and all the many stakeholders and partners involved. That means a holistic approach as a foundation: a considered set of policies that is understood and communicated to all groups; staff at all levels capable of working through processes and ensuring a fair, effective and well-managed response at each stage of a complaint; an institution in a position to draw on specialist and independent expertise when needed for unusual or complex cases; a professional service that bears scrutiny.

The underpinning of any policy should be training for staff in the fundamental skills needed to deal with conflict and difficult situations. For a small proportion that means becoming a mediator, in order for there to be expertise available across the university. When it comes to student complaints, Investigations need to be carried out by appropriate staff (free from any potential bias, and with strong interpersonal skills) with the right level of skills and training. For example, the investigator should understand the health and welfare issues involved, the potential interaction between the disciplinary process and the criminal process, the procedure that should be followed and how. A number of universities are also outsourcing the investigation of more sensitive and complex cases around harassment and sexual misconduct. Given the levels of public interest and potential legal implications, independent investigations make sure institutions can demonstrate a robust and fair response.

But for the majority that means basic training – which can be delivered online – on when and how to refer a complainant to a source of support, because even with clear reporting processes in place, many students will make disclosures to the academic staff that they come into contact with on a daily basis.

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