Designing Dispute Resolution for Educational Institutions: Listening Is Key

Cassandra S. Franklin, Esq.
Cassandra S. Franklin, Esq.
JAMS Mediator, Arbitrator, Referee/Special Master, Hearing Officer
Deirdre McCarthy Gallagher, Esq.
Deirdre McCarthy Gallagher, Esq.
JAMS Mediator, Neutral Analysis and Facilitator

Published January 26, 2022

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You are an associate professor at an esteemed college, which you always thought of as your dream job. Of late, however, you feel as though you are spending less time doing what you came here to do. Instead, you can barely keep your head above water as the administration continually adds new courses and responsibilities to your post. As a result, you are feeling demoralized and stretched thin. You know your colleagues are feeling the same way. When you raise the issue at faculty meetings with the administration, your concerns are swept under the rug. Clearly, the institution is more concerned with the budget than the well-being of its most important resource—faculty members.

You are an administrator at a large, well-respected university where expenses are mounting and enrollment is declining. Recently, you’re spending little time on the educational mission that drew you to the institution. Instead, you are tirelessly working to resolve the inevitable tensions created as the university’s already tight budget is verging on budgetary crisis. Not surprisingly, part of your strategy has been to place greater responsibility on the faculty. They are not taking this well. At faculty meetings, you are faced with complaints that seem to leave no room for discussion of other important issues. You have tried to explain the budgetary concerns at these meetings, and the faculty seems unable to understand simple economics. Your explanations just seem to generate more frustration.

Regardless of your vantage point, more than anything, you want to get this situation resolved as swiftly as possible. The differences between the parties are becoming increasingly frustrating for both of you. They are also diverting precious time and energy from the institution’s fundamental mission: education.

While the desire to find a quick solution is understandable, it may not serve the institution well. Indeed, pushing to move beyond the dispute too quickly may do more harm than good. A rushed resolution will almost certainly bypass a fundamental step to any successful dispute resolution: effective listening.

Listening provides the key to understanding what is going on beneath the surface, which paves the way for successful resolution. A resolution reached without taking the time to listen effectively to key stakeholders in the conflict may leave important concerns and unmet interests to languish and likely resurface later. In other words, a resolution that does not accurately elicit and reflect the voices of those impacted may be more of a Band-Aid than a cure.

So how to create a process that arrives at a more meaningful and lasting resolution? By including effective listening. As facilitators of two-party and multi-party higher education disputes, we at JAMS often design and implement processes for colleges and universities with an immediate problem to be solved. While each institution is unique, and each intervention necessitates a different mix of tools, at the heart of our approach is listening. We collaborate with each institution that comes to us to create a process that is inclusive, comprehensive and reflective of institutional needs. The general contours of such an approach consist of:

  • Identifying stakeholders to ensure the right people are at the table by considering who may be impacted by the outcome or could potentially impact the implementation of the outcome
  • Engaging stakeholders individually and collectively to understand their complex matrices of concerns and interests
  • Working with stakeholders to identify options that build upon the interests of all interested parties and then exploring potential pieces of an effective resolution
  • After discussing and evaluating options, working with stakeholders to map a resolution plan

Throughout each of these phases, effective listening is the common thread. Facilitators employ what are known as active listening skills to inform and advance each phase of the process, ultimately arriving at a well-informed understanding of the scope of the conflict and the interests and concerns of those involved. These conversations can sometimes be emotionally charged and involve passionately held views. Rather than adopting one perspective or another, as facilitators, we guide the discussion toward empathic listening, which suspends judgment and encourages understanding and acceptance, ensuring that all are respectfully listened to and heard. 

In our facilitative conversations, instead of making assumptions, we ask open-ended questions to elicit greater detail or further information. For example, rather than asking a narrow, leading question premised on an assumption, such as “When you and your colleague disagreed about pedagogy, you decided that you could no longer collaborate with him; is that correct?” we ask a more neutral question, such as “After you and your colleague voiced differing perspectives, what happened next?” Such an approach allows the person to tell us their perspective rather than inserting our assumptions or hastily drawn conclusions.

Even when we think we understand what a person has said, active listening requires that we pause and take time to verify our understanding by paraphrasing and asking for confirmation of what we believe we have heard. For example, we might say, “What I’m hearing is that serving your students is important to you and creating space to discuss pedagogical differences is closely tied to that. Am I understanding correctly?” This type of questioning lets the person know that we are listening with a sincere desire to understand and attempting to accurately comprehend their perspective.

Beyond that, as facilitators, we create the space for those in dispute to actively listen to each other. When emotions run high or when disputes are complex, the ability to hear what another party is saying is often lost. As a listener, it is natural to tune out portions of what someone is saying and defer to our internal responses, drawing preliminary conclusions or snapping to hasty judgments. We may even fill in the ends of sentences for the speaker based on our assumptions that we know what they will say. The motivations for doing so may vary, from preserving our narrative about where the other party is coming from to communicating that we understand and are in tune with the speaker. At the end of the day, the impact is the same: We miss or distort the party’s message. This may contribute to the perpetuation of the conflict or even amplify it.

By modeling active listening and facilitating conversations, we guide the parties’ exploration of key interests and concerns. We help them learn to actively listen to each other. We support their efforts to be curious about each other’s perspectives without feeling as though they have “lost ground” by doing so. We assist them in resisting the urge to dismiss interests or concerns that are not shared. 

Though such a process may take a bit longer, it will generate more informed, inclusive and therefore more effective potential resolutions to the dispute. It will also create greater buy-in to whatever creative resolution is ultimately agreed upon by providing those involved with a sense that they are an essential part of the process and their voice matters. This will leave the educational institution ready to turn back to its core educational mission.

In the end, a conflict that initially seemed a crisis might even be transformed into an opportunity. With the guidance of skilled facilitators, the resolution process can leave the educational institution feeling educated, having learned not only about this conflict, but also about powerful new listening skills to incorporate into its dispute resolution toolkit, ready to be employed in resolving future conflicts and disputes. This should help create a stronger, more resilient community.

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