Folks:

The posting below offers, through an interesting example, some good pointers on negotiating an acceptable resolution to difficult situations oftent found in academia. It is from Chapter 3, Methods of Conflict Resolution in an Academic Environment, from: Work and Peace in Academe, Leveraging Time, Money, and Intellectual Energy Through Managing Conflict, by James R. Coffman, Kansas State University. Copyright © 2005 by Anker Publishing Company, Inc. All rights reserved. ISBN 1-882982-84-3 Anker Publishing Company, Inc. 176 Ballville Road, P.O. Box 249, Bolton, MA 01740-0249 [www.ankerpub.com]. Reprinted with permission.

Regards,

Rick Reis
reis@stanford.edu
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Tomorrow's Faculty

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NEGOTIATION

A plethora of literature exists on the subject of negotiation. The purpose of this discussion, however, is not to conduct a literature review but to place negotiation in the toolbox of the prevention, resolution, and management of disputes in academe. Negotiation is a process of give and take based on the interests of the parties to the dispute. The trick is to determine what those interests are. They are frequently straightforward and involve such issues as the distribution of space in a new building or allocation of new tuition receipts or budget reductions. However, as noted in the section on fact-finding, framing, and reframing in Chapter 2, the interests actually may involve underlying concerns that only are symbolized by a specific disputed incident or situation.

Negotiation is an informal process aimed at getting the parties in a dispute to play creative roles in arriving at a solution that they can live with. It might be led by one of the parties or conducted formally or informally by a third party. It might take place in the student union over lunch or in an office or conference room. Negotiation might all happen in one sitting, or, much more likely, over several short sessions. In academic settings, ombudspersons can play an important role in the process as shuttle diplomats, witnesses, or both.

A tenured associate professor with a long history of disruptive behavior and limited productivity is the subject of repeated complaints by students and, more recently, parents. A growing number of individuals have accused the professor of temper tantrums and abusive behavior. Recently, he was alleged to have screamed at a student and shoved him for breaking an unusual glass bottle unearthed at the early 19h century trading post site on an archeology field trip. The student had fallen into a nearby ditch and broken his elbow. The professor admits "speaking sharply" to the student, but denies pushing him. Other students on the trip relate that they were not subjected to physical contact, but indicated the instructor had lost his temper with more than one of them. While no one saw the alleged shoving incident, they all agree that the injured student told them about it immediately afterward, and they believed him. Two of them had taken him to a nearby hospital for treatme!
nt. A week later, a recent graduate calls the head of the department. He relates that he has heard about this incident and remembers that a similar thing happened to him. In his case, the professor had grabbed him by his shirtfront and screamed in his face. He did not report it then, but now wishes he had. The alum says he had a good grade going and just wanted to take it and run.

The department head reaches the conclusion that the professor should be dismissed. He is compelled by the ongoing combination of disruptive behavior, evidence that the students are being abused, and negligible productivity on the part of the professor. On a previous occasion the head already knew about, in which the professor threw a wet sponge at a graduate student, he had agreed to seek anger management treatment but had not followed through.

The recommendation for dismissal is made to the dean, who agrees with the decision after interviewing the professor (who still denies the allegations), the student making the complaint, and the alumnus. The recommendation is forwarded to the provost for action.

Upon interviewing the professor, the dean, the department head, the injured student (accompanied by his parents), the alumnus, and other students and faculty, the provost is confronted with a dilemma. As a result of these interviews, he learned of two other recent graduates who may have been subjected to some kind of physical contact by the professor. He believes, as did the department head and dean, that in addition to his generally disruptive behavior, this person really does have a history of abusive treatment of students. There is good reason to believe that the man's behavior may have crossed the line to battery on at least two occasions. The police are looking into a possible battery charge in the current case, but the absence of third party witnesses makes it unlikely. The provost found the injured student' testimony very compelling. The difficulty is that he also believes there is a real risk of losing in a university-level grievance. His reasons for this conc!
ern included the fact that the professor's tenure is at stake. That could have a strong influence on a grievance panel, depending on its constituency. He also knows that the selection of a grievance panel is largely a random process. The provost also is concerned that some of the witnesses will be hard to assemble (especially the alumnus, who lives 2,000 thousand miles away), and that the professor is sure to have some vociferous support from colleagues who see him as being railroaded. In fact, three such individuals already came to see him on the professor's behalf during his inquiry.

The provost believes that if the matter eventually goes to court, the parties are almost certain to be ordered to attempt mediation. Some judges will push the mediation issue to the point of a near mandate to settle. This always involves giving something up, usually money. He also suspects that the chances of winning in court are limited, primarily by the possibility of losing a grievance. At this point the provost makes two lists as follows.

A speculative assessment of the interests of the professor:
1) He is within two or three years of being able to draw social security and probably will need to be able to bridge that gap with some supplemental income.

2) He is six or seven years away from eligibility for Medicare and maintaining health care insurance is likely to be a big issue. However, he is eligible for retirement and is assured of participation in the university health care plan but would have to pay the entire premium himself. This would occur, however, only if he retires as distinct from being fired.

3) He owns a number of rental houses, according to common wisdom, and these may provide a basic income stream. As an aside, the provost recalls more than one incident in which elected officials complained bout the professor mowing the lawn of his rental properties during the workday.

4) He seems to be a basically unhappy person and is bitter about his experience at the university. Perhaps he would like to leave under the right circumstances.

Interests of the university:
1) The university would be better off replacing the professor, given his low level of productivity, long history of disruptive behavior, and apparent uncontrollable temper and abuse of students. While the physical aspect of student abuse has not been proven, the evidence is strong enough to be very concerned about it.

2) A standard process of dismissal, grievance, and lawsuit would be very costly in terms of widespread disruption among faculty, staff, and students, commitment of time by innumerable people, and out of pocket cost to the institution.

3) The possibility of the university losing a campus grievance and possibly in court is significant; an opinion shared by the university attorney.

4) There is the possibility that the professor actually is innocent of the worst of the allegations, although this would require some sort of conspiracy between the current student and the recent graduate, who seemed not to have known each other when the alleged incidents occurred. Exploration of a separation agreement would indicate to the professor that the chances of dismissal for cause were high (this could be stated explicitly) and would give him an opportunity to choose if he wanted to fight the allegations or leave.

After assessing the two lists, the provost decides to explore the possibility of a settlement agreement. The university attorney agrees this approach has merit. The provost then meets with the professor and an ombudsman. The ombudsman, a historian of long and good standing, has worked with the professor earlier in the matter to advise him of his rights and to clarify procedures such as appeal, grievance, and affirmative action reviews. The provost tells the professor directly that, as he knows, dismissal has been recommended for reasons with which he is familiar. He further indicates that he is leaning toward supporting that recommendation. Before proceeding in that direction, however, he states his desire to learn whether the professor would be interested in exploring some kind of negotiated agreement that would include his resignation. The ombudsperson is witness to the fact that the man was not pressured and that no specific offer or commitment was made.

The professor agrees to think it over. Within two days, the provost receives word through the ombudsman that the professor would like to receive a proposal. A process is initiated in which each party reviews options with his attorney, but lawyers are not involved directly in the exchange. The ombudsperson becomes a shuttle diplomat between the professor and the provost. The provost's assessment of the professor's interests was pretty close to the mark. The outcome is that the professor agrees to retire without being designated as emeritus but with all other privileges of retirement, including continuing eligibility for medical insurance at his own expense. In return, he is to receive a cash payment that will significantly help meet the cost of medical insurance. The agreement includes a confidentiality clause. It does not become a matter of campus conversation and speculation and never appears in the press.

Reasonable people could argue long and hard about whether this fictionalized case was handled appropriately or not. However, it is used as an example of interest-based negotiation for two reasons. It does exemplify the process of moving from strongly held positions to the interests the parties need to address. It also exemplifies a form of raw pragmatism that sometimes is essential in the resolution of a dispute and negation of its potential for collateral damage, including an ongoing furor that drains the intellectual energy of a large number of people for a long period of time.