• Cooper Shattuck

What Makes Mediation Unique for Universities?

Mediation of disputes in higher education settings requires knowledge of considerations that are unique to colleges and universities. These are not only important for the mediator but are critical for the negotiating parties. While many of these elements are present in mediating or negotiating other complex disputes, the combination in higher education settings makes mediating such conflicts especially challenging.

Every complex negotiation (and thus any associated mediation) requires an appreciation of the various stakeholders and negotiating tables at play.

Rarely are the interests of those present the limit of those which must be considered in the negotiation. Even though these other individuals or entities may not be a party to any associated lawsuit or claim, their interests must be considered by those negotiating. Negotiations which fail to focus on interests (rather than positions) are not likely to lead to the most efficient resolution or worse, are doomed to failure.

These concerns may come into play in college and university disputes regardless of whether the school is large or small, public or private. What are some of these interests?

  • Governing Boards. A governing board can play many roles in the resolution of a dispute. They may have to approve any resolution. Even if they don’t, the decision-maker will likely have to report the resolution, directly or indirectly, to the board. There may be a particular board member who is interested or involved in the controversy. The board most likely will take an interest in how their appointing or electing authority views the outcome. Politics may also come into play (and has its own paragraph).

  • Faculty. Faculty may have an interest in the outcome even if a faculty member is not involved. The administration may need to take into account other faculty members currently or potentially for whom the resolution may have some precedential value. Confidentiality may not be possible. Faculty are not your typical employees. They have tenure. They have opinions and voice them, often in prescribed forums, senates, or committees.

  • State law. State institutions often have unique relationships with state law. Some are considered state entities and others have some independence, though they receive state funding. There are privileges, duties, and obligations which often have some impact on negotiations. Examples include open meetings acts, open records acts, limitations on contractual authority, and immunity.

  • Federal law. Virtually every institution has (or hopes to have) some federal funding. The receipt of federal funds gives the federal government some control over even a state or private institution. If you don’t follow the rules, you lose or become ineligible for funding. Those unfamiliar with higher education are often shocked to see the extent to which federal law, regulations, or even policy statements by federal agencies, can have a profound impact on state and private institutions.

  • The Student Body. While the student body rarely has any enforceable standing in a dispute, like a faculty, they may have opinions and voice them. Woe be unto the university president who fails to consider the student perspective. Obviously, if a student or students are involved, a resolution could have some precedential effect on future similar situations.

  • Alumni. All schools have alumni, and many are involved and engaged in the school’s activities (some perhaps more than they should be). The administration wants and needs them to be involved because their financial support is important. A consideration of the interest of one or more current or potential donors can have a big impact. Alumni may also play a role in governance, as they are a frequent pool for board seats.

  • Accrediting Entities. Virtually every college or university is accredited and often there are multiple associations or organizations whose membership requires compliance with certain rules or regulations. If an agreed resolution could have some impact on accreditation, it will rear its ugly head at the next accreditation audit, when it is too late to change the terms of the agreement. These entities may be focused on the many different facets of higher education, including academics, governance, athletics, research, or healthcare.

  • Budgets and the budgeting process. Financing higher education enterprises is a challenge regardless of a school’s size or type. There is rarely enough money and most of it comes with strings. Not all strings are obvious. There may be limits to the types of resolutions to which an agreement can be made because of these strings or because such a resolution could have an impact on future funding.

  • Political interests. As with any institution affecting so many individuals (current and future students, faculty, staff, alumni), the traditions of state, local, and national politics can easily rear their head in a dispute involving even private institutions (but certainly large public ones). Political impacts of decisions will not go unnoticed and thus must be considered.

  • Grants. Grants are simply a specific type of funding, but the impact on large research institutions can be tremendous. Existing grants may have limitations on the use of funds, but their reach can be much wider. Particular policies or agreements which have no impact on a particular grant could nevertheless trigger a reporting requirement at a minimum or at worse, a default. Likewise, a resolution could affect the ability to apply for or receive future grants.

These are just a few of the multitude of interests that may come into play or should come into play when negotiating the resolution of a dispute involving higher education. Having a mediator familiar with them increases the chances of reaching a settlement or resolution that is not only possible but ideal. After all, a mediator should be more than a potted plant.