University Complaints Mediation – Reinventing the Wheel? The OIA Pathway 3 document

 

Within this post on University Complaints Mediation:

  • What do we mean by ‘complaints mediation’?

  • Reinventing the mediation wheel

  • Increasing take up of complaints mediation in universities

  • The benefits of complaints mediation within a university

 

The Office of the Independent Adjudicator which reviews individual complaints made by students against universities has recently published a paper called Pathway 3 – Towards early resolution and more effective complaints handling. Within the document is consideration of the use of mediation to resolve student complaints, an area I’ve been involved in now for about 5 years with a range of different universities but predominantly Brunel University.

However, my background over the past 18 years has been in mediation in a range of different areas including neighbour disputes, NHS Complaints, workplace disputes, disability discrimination disputes and others. What I see  in many areas in which mediation is being considered at the moment is a lot of ‘reinventing the wheel’. There are a number of pilot projects  being created in the workplace mediation field at present and to read some of the weighty documents that are being produced in both the workplace field and the OIA university student complaints area there can be seen a range of similarities in the struggles encountered in getting mediation off the ground and used effectively.

My reference to the reinvention of the wheel arises from the fact that many of these struggles have already been encountered in areas such as neighbour disputes and homelessness mediation and NHS complaints but there is very little ‘crosstalk’ amongst these different areas despite mediation being a generic process that can be applied in all of them. Many say, incorrectly, that mediation needs a ‘specialism’ in any given area but for me that is missing the main point of the mediation process:  It is not a ‘fixing’ process requiring you to know, as the mediator, where to ‘bang the hammer’ in order to ‘get the machine to work again’, it is a process that helps those involved in a dispute or complaint or other communication or relationship breakdown to work out for themselves whether a hammer is even the best tool to use or not,  and whether the machine is better left broken so that a new one can be built in its place, or not. The decision is theirs not the mediator’s.

A fixing process requires an expertise in how the machine works. The mediation process requires an expertise in helping people to communicate effectively and to think creatively about what they are the experts in – their own experience. Very different roles. Indeed, sometimes the fixing role simply suppresses the recognition and discussion of an important flaw in a system that mediation allows to be revealed. This is one of the major potential benefits of mediation.

We cannot solve our problems with the same thinking we used when we created them. – Albert Einstein

What do we mean by ‘complaints mediation’?

The section in Pathway 3 that deals with mediation (page 17) begins with:

……there is variable knowledge across the sector about what mediation is, and potential for much wider understanding and usage. ………In selected circumstances, and guided by appropriately trained and briefed personnel, mediation provides the direct engagement that nearly 80 percent of complainants surveyed in Pathway 1 believed was missing from both university and OIA processes.  (Pathway 1 refers to The Pathway Report p.48 Feb 2010.)

Unfortunately, the fact that there is ‘variable knowledge’ has not prevented a belief in many universities that they are already providing mediation in student complaints or other areas of difficulty within Universities such as disputes between students and local residents and between staff in universities. This is partly due to a very vague definition of mediation that is often put out, and quoted in Pathway 3,  that:

……mediation is a process where an impartial, independent third party helps parties to a dispute resolve issues on a voluntary basis and confidentially.

As a mediator it can be my tendency to explore what is meant by single words within a sentence simply because they can be the key to why a dispute arises. One person means one thing by a particular word, another person means another. Their mutual assumption that the other understands it to mean the same as they do is a source of deep frustration and confusion when the other person’s actions seem to be out of alignment with that assumed shared understanding. And the sentence above is full of assumed meanings. What does ‘impartial’ mean? What does ‘independent’ mean? What does ‘helps’ mean? ….and we could go on.

The ‘looseness’ of the above definition manifests quite quickly in the rest of the report:

Three universities reported a low take-up of the option of mediation. Two universities believed that this was influenced by the fact that mediators were members of staff and seen as not impartial by students. Two other universities believed mediators in their institution to be impartial notwithstanding being members of staff. 

So were they impartial or weren’t they? The point is, as a mediator, your impartiality manifests itself in how you conduct yourself, the language you use and your lack of ‘fixing’, advice, suggestions and opinions.  It also depends on how the service offered is portrayed to those who may wish to use it. Ultimately we can’t control how a potential user of mediation perceives the mediator or the process, but we can do a lot to conduct ourselves and portray ourselves in ways that remain impartial. To mediators who have concerned themselves with such issues these are ‘old hat’. No less challenging for being so, but nevertheless the ways in which we communicate what we do and how we conduct ourselves ‘in-role’ have been known for some time.  And yet, in the many areas in which mediation is now being encouraged, such questions are still being asked and such apparently contradictory statements are still being made.

Unfortunately ‘impartiality’ and independence are often assumed to reside in someone who is just ‘not related’ to the situation that is a matter of dispute. What this leads to frequently is appointment of someone as ‘mediator’,  who has no particular training in mediation practise.  What it misses is the fact that, when confronted with two or more people in dispute, without a considered, mindful awareness of how we actually communicate and respond to such a situation, our partiality towards one party or another is easily manifested in the statements we make, the opinions we give, the suggestions we offer. I once found this description of a mediation process offered by a University within its complaints procedure, and it is not an uncommon example:

The purpose of mediation is to provide a forum for reaching a decision on, or solution to, a student’s complaint, particularly where the complaint centres on a certain member of staff or a group of staff. The forum consists of the student and their friend, a member of the Students’ Union (additional to the student’s friend), the member of staff who is the subject of the complaint, the member(s) or staff responsible for the area of the University’s activity that is the subject of the complaint, a member of staff from another faculty or equivalent, and a chair appointed by the Vice Chancellor from among the senior staff of the University not previously involved in the complaint. (my emphasis in the last sentence)

To pre-define who the student should attend with is not impartial. To require that a member of the SU should attend is not impartial, even to require that the staff member who is the subject of the complaint should attend is not impartial – some mediations I have conducted have not included the staff member complained about and that has been fine with the complainant, and their complaint has been resolved to their satisfaction and that of the university without this. But to continue, to have a member of staff from another faculty is not impartial nor is to have a ‘chair appointed by the Vice Chancellor’. Impartiality does not come from ‘status’ it arises from conduct. I’d be extremely surprised if mediations under such conditions ever went ahead because of the vast numbers of ‘named persons’ who are required to attend. Mediation is a simple process. I might conduct a mediation where, in the room, there is just myself, the student and a University representative, whether they are the staff member complained about or not.

The above example is also a reflection of how an adversarial legacy remains in many descriptions and practises that go under the heading of ‘mediation’ when it is actually a non-adversarial process. The example seems to assume that there will be ‘someone’ complained about rather than ‘something’ and that there will be ‘someone’ at fault rather than a system or process or experience that is not working or proving satisfactory. The focus is on victim/perpetrator rather than problem/resolution.

I could go just as deeply into the other parts of the sentence used to define mediation and how their ambiguity can manifest in approaches to mediation but will not do so here. The point I want to make is that many of the present explorations into the use of mediation within complaints and grievance procedures and other similar dispute management processes are ambiguous in their use of the term ‘mediation’ and as a result there are few clear outcomes emerging from the exploration. As a further example, the recent QAA consultation draft of Chapter B9: Complaints and appeals on academic matters has the following statement on page 6:

Where providers’ arrangements include mediation, a campus ombudsman or other alternative dispute resolution services, providers make clear to students and staff the scope of the services, and whether their use is subject to the parties agreeing in advance to accept the solution offered or the findings reached. (emphasis is mine)

The ambiguity manifests again here as complaints mediation is ‘lumped in’ with processes where the emphasised statement may apply, but for which it would never apply to mediation. Mediation doesn’t have ‘solutions offered’, any solutions are created by those involved in the mediation meeting itself and not anyone else. Mediation doesn’t have ‘findings’ as it is not an investigative process. These outcomes are more akin to arbitration which is an adversarial process and fundamentally different in how it is managed and in the role of the third party who will both investigate and give findings.  A mediator would not do this and yet the statement above would imply otherwise. Einstein’s quote above applies again in this situation – looking at mediation from an adversarial perspective when mediation is a non-adversarial process.

So why is this leading to a reinventing of the mediation wheel?

Well, the lack of rigour in the definition of mediation used and the ambiguity that flows from this means that many of the challenges that have been met before in other fields are arising again in this field and in others that are exploring a greater level of usage of mediation to resolve complaints and grievances and other unresolved conflicts and relationship breakdowns.

Establishing a clarity with regard to what mediation is and how it is distinct from other processes means that a proper comparison with other processes becomes possible. Without that clarity, the meaning of the term mediation within such comparisons will continue to be ‘variable’ and much of what it offers will need to be ‘rediscovered’ or perhaps even become lost in the variability of what it is understood to be.

This is unnecessary as there is a clarity and rigour to the mediation process, underpinned by clear philosophies that define the conduct of a mediator, their role and how they communicate within their role in order to maintain an impartial mediation process that supports the empowerment of those involved to communicate effectively and be creative in their pursuit of a resolution to their difficulty.

Increasing take up of complaints mediation in universities

In many universities the reason that complaints mediation has not ‘taken off’ as much as it might is because of this lack of understanding amongst staff and students who may be offered it. If there is ambiguity in the OIA and QAA documents, is it not likely that there will ambiguity in the messages given out to those who may be offered it within Universities? Effectively introducing mediation to any organisation involves more than just training up some mediators. It requires the development of a completely different approach to responding to complaints by both the complaints departments and staff within Faculties. In any organisation, university or otherwise, where I have helped set up mediation provision the crucial factor in whether it is used and understood by potential users of the service is not whether there have been mediators trained to provide the service – mediation may be provided by an external mediator –  it is where the organisation has committed to reviewing its means of responding to complaints, disputes, disagreements in order to encourage and accommodate what is a fundamentally different approach to resolving conflict.

This means:

  • Running mediation alongside a complaints/grievance procedure rather than as a ‘step within it’ – the latter approach is what leads to attempts to make mediation compulsory because it is taken up so rarely at the time that the procedure is ‘open’ to it. Mediation can be available throughout the life of a case and, while many say it is ‘better’ to be used in the early stages, this presumes that those involved agree. (“You can voluntarily have mediation, but only when we say you can”…?) In a voluntary process it is up to those involved to decide when it is best to use mediation and so the process needs to be available alongside the complaints or other traditional procedure, ready to be called in when those involved wish for it. This actually makes it easier to implement as the traditional procedures can continue apace, but in the meantime those involved can separately choose to resolve the situation via mediation – or not. They are also not limited with regard to when they can use it and so the likelihood of take up is massively increased as the window of opportunities to do so are increased.

I once worked in complaints mediation for the NHS. Prior to my arrival mediation had only been offered to patients and primary care practitioners after much debate amongst complaints staff about whether it was ‘suitable’ or not, or whether they thought those involved would want it or not. As a result, in the year prior to my arrival less than 5 cases had tried complaints mediation and in many cases it had not been offered. On arrival, I asked that all cases be offered mediation within all correspondence – just a short paragraph at the end of each letter to remind those involved of its availability. I asked that all cases be offered it (not ‘sold it’, I emphasise) within telephone conversations and if there was interest in a no-commitment discussion with ‘the mediator’ then I would confidentially discuss what it involved with a patient or doctor/dentist. In this way the complaints officers could continue with their normal role and not have to have informal case discussions about whether mediation was ‘suitable’ or not, even while their own understanding of the process was ‘variable’.  The decision about whether to mediate was rightly transferred to the complainant/practitioner involved. During the 8 months I worked there I mediated in over 30 complaints cases – a 6-fold increase in the number of cases on the previous year and, pro rata,  a 9-fold increase. This leads to the second means of increasing take up and using mediation more effectively within an organisation:

  • Training more than just mediators and including reference to mediation within publicity and information given out at advice centres. When understanding of  complaints mediation is ‘variable’ it is unlikely that gatekeepers of complaints (tutors, advice agencies, student welfare and support staff, complaints officers etc.) will recommend it when they do not fully understand its role and purpose. ‘Better the devil you know…’ etc. I have provided training of mediators in organisations in the past and even offered to do awareness training of other staff at half-cost to encourage its use but in some organisations the only take up has been training of mediators because it seems to be hoped that ‘by osmosis’ the rest of the organisation will come to understand what mediation is. This sets up a chicken and egg situation where, because other staff do not understand mediation they rarely, if ever, encourage it and in some cases, through misconception of what it is (see above definition from within one university’s documentation) they actively discourage it. As a result, mediators remain without cases and the project is deemed to have not worked  when this outcome is unrelated to the mediation process, it is related to the organisation’s commitment to appropriately publicising the service and educating its staff and students in the recognition of mediation as a genuinely alternative means of responding to complaints. It would seem an ineffective use of resources to spend significant amounts of money on training mediators for them to remain in the shadows because there is not a corresponding commitment to awareness raising amongst staff within the institution.  (A small caveat to my last statement, while the costs are significant, in one university a Chair of a complaints panel reviewed the mediation training cost and pronounced it to be ‘trivial’ compared to the costs incurred in settling some student complaints via the complaints procedure, but hopefully the point remains  – why train mediators and not then make a full commitment to ensuring the whole institution understands that there is an alternative process available for use and how it can be of assistance? )

The benefits: Complaints mediation has the potential to provide:

  • Cost effective resolution of student complaints
  • Reputational benefits for the University in that a more amicable resolution is achieved than when a student feels they have ‘lost’ their case via a complaints procedure or had to climb mountains and walk across hot coals to ‘win’ it.
  • An opportunity to maintain the learning relationship between a student and university staff rather than a breakdown in the relationship. Even if just for ‘procedural reasons’ staff and students are often kept apart while a complaints procedure is in progress.
  • An opportunity for learning in order to improve procedures, policies and practises for the university, and for the student to understand their own responsibilities within their learning relationship with the university and the staff who support their learning. (It is often quite surprising how much written correspondence has failed to get across the real basis for a student’s complaints and/or a university’s reasons for taking the actions they take, even if in alignment with expected procedures)

Mediation is a process that is practised throughout the country in a range of different areas of dispute, complaint or other relationship difficulty. The knowledge and expertise is present in many local community mediation services that may provide neighbour mediation, homelessness mediation, complaints mediation, workplace mediation, Special Educational Needs disagreement mediation. The mediation wheel has been invented and improved many times throughout the last 25 years in these organisations. I would encourage universities to look outside of their own institutions for their learning about mediation rather than reinvent a well worn wheel within their own confines and miss the opportunity to take a swifter leap forward in making full use of this effective, creative process.

For information on support for the use of mediation in universities from CAOS Conflict Management click here

 

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Are you a student who has made a complaint about your university?

Are you a university representative who has used mediation to try to resolve a student complaint?

What has been your experience of using mediation for university complaints? Please give your comments below…..

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