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Mediation of Disputes
The Faculty Conduct Policy (Section 7.2.4) provides an opportunity for parties to a dispute involving potential disciplinary action against a faculty member to mediate the dispute. Mediation is not mandatory. All parties must agree to mediation. The purpose of mediation is to try to resolve disputes informally and voluntarily without the need for formal action.
What is mediation?
Mediation involves a third party to facilitate and explore resolution of a dispute. The mediator does not issue findings or a decision about who is right and who is wrong.
Mediation may occur in different formats depending on the mediator, or upon the issues. A mediator may have all parties together in a room during the whole mediation, and facilitate the discussion. Other mediators prefer "shuttle diplomacy" between the parties with or without an initial meeting for each side to make an opening statement. There are other forms as well.
The result of successful mediation is a written agreement memorializing the agreements of the parties. Resolution depends on consent of the parties, and each of the parties may abandon the process.
Who are the parties to mediation?
Under the FCP, persons bringing a disciplinary charge may be a member of the university community (e.g., a student or P&S staff member), or a university administrator with supervisory authority over the faculty member. Clearly, when the administrator enters into a mediated resolution under the FCP, the resolution satisfies any need for disciplinary action.
However, if the complaint is brought by a person other than a supervisor (i.e., a non-supervisory complainant), an appropriate university administrator must also be involved to assure that the disciplinary concerns are resolved.
It is important that faculty accused of misconduct realize that the university is not required to forego disciplinary action unless the mediation involves the university as a party, or unless the mediation agreement is resolved with the university's agreement that the resolution addresses any need for disciplinary action.
A non-supervisory complainant and faculty member may between themselves decide to implement a mediation agreement even where the University is not involved or, if it is involved, does not agree to the resolution. In such a case the resolution agreement is only between the complainant and the faculty member. The university is not bound to withhold disciplinary action, and may decline to take a role in management or enforcement of the agreement.
There are two ways in which the university may participate when mediation is agreed to between a non-supervisory complainant and the accused faculty member.
- First, the university may designate a representative to be involved in the mediation as a party. In such cases the university representative participates as a co-equal in the mediation to express the university's interests, and assures that any resolution will meet the university's interests and that the university can implement the resolution. This procedure should be used in more serious cases, and where resolution may require university resources to enforce or implement the agreement.
- Second, the university may designate a representative to indicate its interests at the outset of mediation, but to withdraw until needed by the mediator. When the parties work out the terms, the university representative reviews the agreement to assure that the agreement can be implemented and that the agreement satisfies any disciplinary concerns. To the extent that the dispute is largely a private dispute, and the conduct is relatively minor, and there are no prior similar instances, such a process is warranted.
The University will cover the cost of mediation if a representative of the Provost's Office approves, even if the mediation is unsuccessful. If the university does not agree to mediation, the parties may mediate, but must do so arranging to cover any mediation fees themselves.
If the parties would like to discuss options on resolution of a particular dispute, they may contact the following offices: University Human Resources, Dean of Students, or Equal Opportunity.
Who are the mediators?
The University has in place contracts for mediation services.
How Is mediation set up?
If the parties desire to mediate an issue involving faculty conduct, they should contact the Provost's Office to secure approval for mediation. The Provost's representative will determine whether an administrative party is necessary. Upon approval to mediate, the parties must agree on a mediator, or seek the assistance of the Provost's representative in selecting a mediator.
The parties need to contact the mediator and sign a mediation agreement that sets forth the ground rules for mediation.
The mediator works with the Provost's Office to facilitate setting of a time and place for the mediation. The mediator will determine the remainder of the process to be used.
How much time does it take?
In practice, most mediations take less than a day. Generally, the university will not pay for mediations extending beyond four hours in one or more sessions (plus mediator preparation, costs and set-up fees). In no case should the parties expect a mediation to last more than eight hours. Mediators may suggest shorter periods.
Do I need to prepare?
This is determined by the parties, by the mediator and by the issues to be discussed. A mediator may ask for a pre-mediation statement, or to review documents before the meeting. A mediator may ask for documents to be brought to the session. The mediator may ask that each party come to the mediation prepared to state their views.
The mediator's obligations
You should expect the mediator to:
- Be unbiased and objective. That does not mean that the mediator won't have views about who is wrong or right. Nor does it mean that the mediator will spend equal time listening to or relaying a party's views
- Maintain the confidentiality of statements you wish to remain confidential. If you relay information to the mediator and ask that the information not be relayed to the other party, the mediator should respect your wishes
- To the extent provided by law, maintain the confidentiality of the process. The mediator will not discuss with persons other than the participants, the information relayed during the mediation, except as authorized by the participants.
The mediator's role is not one of providing legal advice or counseling to the parties.
The parties' obligations
The parties to mediation are expected:
- To participate in good faith toward resolution of the dispute
- Not to provide false information
- Not to use the mediation as a means of furthering wrongful conduct
- Not to call the mediator or the other parties as witnesses later to testify about what was said or presented during the mediation, nor to subpoena or call for production of records of the mediation, unless the issue is whether claims against the mediator are warranted, or whether the mediation agreement was procured wrongfully
- To carry out any obligations resulting from a mediation agreement