University Business - September 2008 - (Page 19)

VIEWPOINT Coming to Terms How mediation can resolve campus disputes without litigation By Ruth D. Raisfeld D O ANY OF THE FOLLOW ing campus disputes sound familiar to you? An academic department chair is struggling with warring factions among the faculty who do not get along and are engaged in petty in fighting. A long-term clerical employee complains that she is passed over for promotion because of her race, while younger Caucasian student workers seem to get better assignments. An adjunct faculty member denied a permanent position files a charge of discrimination alleging he has been discriminated against because of his recent heart surgery. A student serving as a research assistant to a professor complains to the dean of students that she is being sexually harassed; her parents want the professor removed and their tuition payments reimbursed. Any university counsel’s office knows that when an employee or student files a complaint or threatens legal action, the dispute becomes a voracious eater of time, attention, and resources. Given the expense of defending litigation, the emotional issues frequently involved, and the potential for negative press both on campus and off, certain campus disputes are well suited to early and speedy resolution through mediation or the “ADR” process. WHAT IS ADR? ADR, or “alternative dispute resolution,” refers to a range of options for resolving conflict, typically with the intervention of a trained, neutral, third-party professional. These processes include arbitration, fact-finding, neutral investigation, use of an ombudsperson, and mediation. the parties themselves to retain control over the process and outcomes.” WHO ARE MEDIATORS? Mediators are often members of a courtannexed panel or associated with a disputeresolution organization such as the American Arbitration Association ( or JAMS ( Other mediators have independent “solo” practices, and may have expertise in a relevant industry or with certain types of disputes. The hallmark of mediation is that the mediator meets with all parties, in joint or separate meetings known as “caucuses,” guiding them through exchange of information and exploration of interests and positions in a confidential setting, with the goal of enabling the parties to reach agreement themselves. Unlike a judge or an arbitrator, the mediator has no power to render a binding opinion or impose a settlement. Generally, discussions that take place during the mediation are deemed to be confidential or are treated as “settlement discussions” under state and federal evidentiary rules. The work of the mediator is to keep the parties engaged in the negotiation even when the parties appear hopelessly far apart. The mediator will continue to question the parties about the facts, relevant law, and interests, and will attempt to get the parties thinking about the strengths and weaknesses of their case as well as their adversaries’ case. Some mediators Ruth D. Raisfeld is an attorney who provides alternative dispute resolution services to law firms, corporations, and neutral panels. She can be reached at Mediators must keep the parties negotiating even when those parties appear hopelessly far apart. ADR procedures have been institutionalized in various government programs throughout the world, and increasingly in the United States. They’re often used in matters of domestic relations, commercial, employment relations, civil rights, construction, energy, securities, environment, and personal injury, as well as in community disputes involving neighbors, small businesses, landlords and tenants, etc. With mediation, one form of ADR. a trained third party is selected by the parties (or appointed by a tribunal) to assist the parties in resolving their dispute. The mediator does not make decisions for the parties. Rather, as the Association for Conflict Resolution ( describes the process: “Mediation [helps] people engage in conflict constructively and discuss difficult issues. The mediator helps to identify key issues and gather relevant information. … Mediators do not tell people how they should resolve their differences, but some mediators may offer suggestions for the parties to consider. … Mediation often saves both time and money for clients. It allows September 2008 | 19

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

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

University Business - September 2008