Restoration without the drama

November 18, 2005

Third-party mediation can work wonders in university employment disputes, explains Jan Scrine

When I arrived in higher education some years ago from "outside" - in my case from the private sector - I was surprised to see how rapidly a disciplinary matter reached the desk of the registrar or even the vice-chancellor.

Organisation structures in academia are much flatter than in the commercial sector or in local government. There, a member of staff being subject to disciplinary action would have a supervisor, a manager and a head of division to progress the various stages of appeal. Rarely would it reach the desk of the chief operating officer in an organisation employing thousands. And in higher education there follows the slow progress through the institution's committee structures, probably involving external members of the governing body too.

So I was not surprised to see statistics in The Times Higher ("Millions wasted on tribunals", October 14) showing that universities prefer to settle disputes rather than squander senior management's time going through endless committees. But, as the piece showed, while this avoids tribunals, it can still be costly.

For an unfair dismissal claim to be defended successfully at an employment tribunal, not only must the reasons for dismissal be "fair" but the process followed must also be "fair" - however dire the conduct of the employee.

Universities often fail on this front through the practice, peculiar to higher education, of rotating chairs or heads of department. Each new incumbent chair has a steep learning curve in managing a whole range of resources.

Despite the vast sums of funding council money being pumped into higher education to improve personnel and human resources practices, formal training in managing people is patchy. Thus, when confronted by a real person who is underperforming or complaining vociferously, the chair may fail to recognise the gravity of the situation; does not think it worth involving the personnel department; makes a cheery or weary off-the-cuff remark. And thus the process of dealing with the unhappy researcher or department secretary is flawed from the outset, unlikely to impress an employment tribunal.

What can be done? One option is mediation. During his research under the auspices of the Oxford Centre for Higher Education Policy Studies into the law governing higher and further education, David Palfreyman, the bursar at New College, Oxford, recognised the value of mediation. Intervention by an independent, neutral third party is effective in many scenarios, including disputes with students, suppliers and funding bodies as well as in academic and support staff cases.

In staff matters, mediation outcomes may be "restorative", restoring working relationships and collegiality in place of conflict, or "severance", allowing a mutually acceptable settlement to be concluded in the "without-prejudice" environment of mediation. This is usually less traumatic for all parties than if agreed on the courtroom steps.

If the situation is beyond repair, the mediator will involve any legal and trade union representatives in drafting and signing the final settlement or compromise agreement.

Higher and further education is unique. Mr Palfreyman and his colleagues at OxCHEPS have brought together a panel of independent mediators with a blend of recognised mediation qualifications and understanding of its distinctive nature. An increase in the number of agreed "settlements" at earlier stages in disputes has to be beneficial for all concerned - and if restoration results, what better outcome can there be?

Jan Scrine is an independent HR practitioner and a member of the OxCHEPS panel of mediators.

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