University Business - September 2008 - (Page 20)

VIEWPOINT use a “decision tree,” which maps out the costs and expenses of continuing with the dispute and the risks associated with each stage of the process, together with an analysis of likely outcomes. With patience, persistence, and creativity, mediators can often help parties forge resolutions that contain both economic and non-economic terms. HOW CAN MEDIATION RESOLVE CAMPUS DISPUTES? What is it about mediation that can save colleges and universities the expense and distraction of disputes that can drag out and even end in litigation? Mediation gets all the parties and counsel in a room at the same time for a condensed and focused discussion of the problems that may otherwise take weeks, months, or years. Those involved in campus disputes are familiar with the seemingly endless months of phone tag and unanswered correspondence or e-mails, which delay and deter full discussion of the issues and possible resolution proposals. It can be a challenge even to get parties to focus until there’s a crisis or some other deadline. A mediation at which counsel and decision-makers for the parties must be present provides a unique opportunity for all stakeholders to be focused on the issues and interests that led to the dispute in the ﬁrst place. Sometimes the mere scheduling of a mediation forces counsel and the parties to pick up a ﬁle, review the facts, law, and outstanding issues, and brainstorm possible ways to achieve a resolution. A mediator can oﬀer a fresh perspective on the facts and law. Quite often, counsel and the client get so involved in the minutiae of waging a legal battle that they “lose the forest for the trees.” Counsel may dread the call from a client wanting an update on the status of a matter that hit their desk long ago; the client may become dissatisﬁed with counsel’s view of the matter, which has migrated from “optimistic” to “doubtful.” In such cases, a mediator can provide a “reality check” about the prospects for success in litigation that counsel may have difﬁculty communicating to a client. A medi- ator who is experienced in the relevant law, who has been briefed on the issues at hand, and who has had an opportunity to “size up” the evidence and witnesses may be in a better position than counsel or client to assess a case’s strengths and weaknesses. Merely scheduling a mediation can force the parties to brainstorm possible resolutions. Similarly, a mediator doesn’t have the same emotional investment in “winning” that the counsel and parties have and is able to give a dispassionate viewpoint that can move parties away from a stalemate. Also, in a mediated settlement parties can obtain results that may not be awarded by a court or jury. Mediation can be an extremely eﬀective dispute resolution tool when the parties need to continue working together—such as with a staﬀer who is several years from retirement and feels she has been underpaid, or a student who wants an apology from campus police. Remedies unavailable in litigation may be fashioned by the parties themselves. These things could include reference letters, apologies, a procedural change, or provision of certain kinds of beneﬁts for which the party may not otherwise be eligible. In addition, mediation provides “facesaving” cover for settlement discussions. Counsel may be reluctant to engage in these discussions for fear of being seen as “weak” or uncertain about their case’s strengths. Counsel may also be concerned about appearing zealous and conﬁdent in front of their clients. Mediation can facilitate the passing of oﬀers and counteroﬀers, eliminating or reducing the amount of ego often found in settlement negotiations. While mediations can and do get contentious, an eﬀective mediator can encourage a “let’s-just-get-along approach” that impatient adversaries may be unable to accomplish on their own. Mediation provides conﬁdentiality and avoids publicity. The privacy aﬀorded by mediation processes is a key factor contributing to the success of mediation to resolve a campus dispute. Educational institutions may wish to avoid the glare of public attention and media scrutiny. Airing disputes before a judge or jury may aﬀect the reputation of witnesses and interfere with the conduct of daily campus aﬀairs. Mediation provides an ideal setting where personality conﬂicts and academic disputes can be worked out or new assignments can be considered. The conﬁdentiality provided in the process encourages candor, problem solving, and creativity. Mediation is more predictable than litigation as well. The institution’s president and board of trustees want certainty and closure. No lawyer, however, can ethically or practically guarantee a particular result in court. Litigation is unpredictable: a document can surface that no one remembers, a witness can crumble on the stand, a jury may not appreciate the nuances of an argument. Litigation involving academic decisions or multiple parties on a college campus can be particularly complicated. Mediation can avoid the consequences of submitting a disputed matter to a judge or jury that may not have the time or expertise to hear and understand the facts that led to the dispute in the ﬁrst place. In mediation, without rules of evidence or procedure, the parties can use less structured and more accessible means to convey the heart of a problem to the mediator and the other side, which may facilitate eﬀective settlement discussions. University counsel should seriously consider using mediation to resolve simmering campus disputes or to settle threatened or pending litigation. While many campus disputes seem intractable, the presence of an outside neutral person may help all parties gain a diﬀerent perspective on the matter, enabling them to develop strategies to get along, avoid continued conﬂict, prevent litigation, and reach creative solutions. 20 | September 2008 universitybusiness.com http://universitybusiness.com

Table of Contents for the Digital Edition of University Business - September 2008

University Business - September 2008
Contents
College Index
Company Index
Advisory Board
Editor's Note
Behind the News
Sense of Place
Viewpoint
Human Resources
A Virtual Visit Welcome
Development Directors Speak Out
NACUBO in the Windy City
Facilities Focus
Money Matters
Financial Aid
Endowment Management
Marketing
What's New
End Note

University Business - September 2008