Integrated Grievance Handling Mechanisms in Universities – A Viable Alternative? Hilary Astor Professor of Dispute Resolution Faculty of Law Sydney University

Outline 1. What are ICMS? Where did they come from? 2. Do universities need ICMS? 3. What are the challenges for introducing ICMS in universities?

Alternative dispute resolution and Dispute Systems Design (DSD) In an organisation, an ADR plan is designed to make greater use of interest based methods of handling disputes In an organisation, an ADR plan is designed to make greater use of interest based methods of handling disputes Dispute Systems Design, developed in the late 1980’s, creates a system in which interest based, rights based, and sometimes power based, methods are linked together Dispute Systems Design, developed in the late 1980’s, creates a system in which interest based, rights based, and sometimes power based, methods are linked together

William Ury, Jeanne Brett and Stephen Goldberg Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict (1988) Jossey Bass, San Francisco. Step one - Diagnosis What sort of disputes and disputants are there? What sort of disputes and disputants are there? How much disputing? How much disputing? How are disputes being handled and why? How are disputes being handled and why? What is it costing? What is it costing? Is it effective? Is it effective?

Step 2 – design a system for resolving disputes (Ury et al) Focus on interests, not positions Focus on interests, not positions Emphasise negotiation – early and often Emphasise negotiation – early and often Use low cost interest based options Use low cost interest based options If interest based processes do not work, use low cost rights based mechanisms If interest based processes do not work, use low cost rights based mechanisms Arrange procedures in low to high cost sequence Arrange procedures in low to high cost sequence Provide ‘loop backs’ – so that the parties can use or return to low cost interest based methods at any point in the system Provide ‘loop backs’ – so that the parties can use or return to low cost interest based methods at any point in the system Make the system self-reflective Make the system self-reflective Consult, train, evaluate and revise system Consult, train, evaluate and revise system

Further developments in DSD Systems for managing conflict in organisations should be integrated with other management systems Systems for managing conflict in organisations should be integrated with other management systems A system for handling disputes needs to be appropriate to the culture and core values of the organisation A system for handling disputes needs to be appropriate to the culture and core values of the organisation Those who use the system should design it Those who use the system should design it Conflict is not pathology – it is normal Conflict is not pathology – it is normal The system must be used, have multiple access points, ‘loop forwards’. The system must be used, have multiple access points, ‘loop forwards’.

Integrated Conflict Management Systems Society of Professionals in Dispute Resolution (SPIDR) Designing Integrated Conflict Management Systems: Guidelines for Practitioners and Decision Makers in Organisations, 2001, No 4, Cornell Studies in Conflict and Dispute Resolution, Ithaca NY. Society of Professionals in Dispute Resolution (SPIDR) Designing Integrated Conflict Management Systems: Guidelines for Practitioners and Decision Makers in Organisations, 2001, No 4, Cornell Studies in Conflict and Dispute Resolution, Ithaca NY.

SPIDR – Developmental Model of Conflict Handling in Organisations 1. An absence of defined dispute resolution processes 2. Grievance processes based on rights and adjudication 3. Interest based processes added into the mix 4. An integrated system which introduces a systematic approach to resolving conflict that focuses on the causes of conflict

SPIDR – characteristics of an integrated system Multiple methods of resolving conflict, both interest based and rights based, appropriate to the organisation. Multiple methods of resolving conflict, both interest based and rights based, appropriate to the organisation. Multiple access points to these DR mechanisms. Multiple access points to these DR mechanisms. Options for all types of problems and all people Options for all types of problems and all people Resolving conflict is integrated into the organisation’s policies, structures and daily operations. Resolving conflict is integrated into the organisation’s policies, structures and daily operations. Emphasis on prevention of conflict by methods such as listening, mentoring, conflict coaching, informal problem solving Emphasis on prevention of conflict by methods such as listening, mentoring, conflict coaching, informal problem solving Conflict is regarded as providing important information about systemic problems in the workplace. Conflict is regarded as providing important information about systemic problems in the workplace.

Ongoing Challenges for DSD/ICMS Rigorous testing and evaluation? Rigorous testing and evaluation? Are systems always created in a participative manner? Are systems always created in a participative manner? Does the designer have a neutral role? Does the designer have a neutral role? Hidden conflict and the perspective of minorities Hidden conflict and the perspective of minorities

Do universities need ICMS? Crises and opportunities 1. The level of litigation by universities is increasing significantly 2. State ombuds have noted an increase in disputes and a national university ombuds has been proposed 3. Cost of university conflicts is very high 4. Diverse (possibly conflicting) policies and practices for conflict handling

2. Ombuds Annual reports of State ombuds reveal increase in number and complexity of disputes involving universities Annual reports of State ombuds reveal increase in number and complexity of disputes involving universities NSW Ombudsman DP Complaint Handling in Universities NSW Ombudsman DP Complaint Handling in Universities 2001 Senate Committee on Higher Education recommended a university ombuds Senate Committee on Higher Education recommended a university ombuds.

3. Cost of university conflicts $$$ costs of rights based processes, especially litigation $$$ costs of rights based processes, especially litigation Cost of staff time, including expensive senior management time Cost of staff time, including expensive senior management time Emotional and career damage to those involved in conflict Emotional and career damage to those involved in conflict Loss to university of staff or staff engagement with work Loss to university of staff or staff engagement with work Ripple effects on colleagues Ripple effects on colleagues Damage to university’s reputation Damage to university’s reputation (Astor, ‘Improving Dispute Resolution in Australian Universities: Options for the Future’ (2005) 27 Journal of Higher Education Policy and Management 49.

4. Diversity of policies and practices Where are universities on the SPIDR developmental model? Where are universities on the SPIDR developmental model? Are interest based processes used as much as they could be? Are interest based processes used as much as they could be? Achievements in developing policies and procedures for student disputes, staff misconduct, EEO etc – but are they integrated? Achievements in developing policies and procedures for student disputes, staff misconduct, EEO etc – but are they integrated? Are they used for the appropriate disputes? Are they used for the appropriate disputes? Conflicts between processes e.g. UNSW between provisions of Inquiry and Enterprise Agreement Conflicts between processes e.g. UNSW between provisions of Inquiry and Enterprise Agreement

The challenges for development of integrated systems in universities 1. Cultural issues 2. The higher education marketplace and its consequences 3. The ‘scholar in the manager’s hat’ 4. ICMS is new and unfamiliar

Conflict and the culture of universities ‘Controversy is the lifeblood of a university that is doing its duty.’ Ian Chubb ‘Controversy is the lifeblood of a university that is doing its duty.’ Ian Chubb Controversy is the lifeblood of an academic who(se) … Controversy is the lifeblood of an academic who(se) … –Department is being re-structured –Disagrees with the Dean/HOD’s approach to workload allocation –Access to the car park is being restricted … Protecting Academic freedom Protecting Academic freedom

The Higher Education Marketplace Expansion and amalgamation of universities and higher education institutions Expansion and amalgamation of universities and higher education institutions Restructuring of disciplines, faculties and departments Restructuring of disciplines, faculties and departments Students as paying ‘customers’, directly or through HECS Students as paying ‘customers’, directly or through HECS Management of academic ‘productivity’ Management of academic ‘productivity’ Regulation and re-regulation of research funding Regulation and re-regulation of research funding

Consequences of cultural change in universities Top-down management of change in organisations that are traditionally collegial Top-down management of change in organisations that are traditionally collegial Universities ‘punch drunk’ with change Universities ‘punch drunk’ with change Increase in conflict Increase in conflict

The scholar in the manager’s hat Managers of academic conflict are often in role for short terms Managers of academic conflict are often in role for short terms They have little training or experience They have little training or experience Typically, as soon they have gained some experience they are replaced by a novice Typically, as soon they have gained some experience they are replaced by a novice