To a student, even to a parent, a waiver will read like a foreign language: Legalese. Legalese may seem vaguely fair, meant to protect the student and the study abroad program equally. The reality is more complex.
Some programs will use their waiver to educate incoming students about risk. We support this purpose, and yet note that the language of waivers remains legalese. Why are student waivers not written in more accessible language, with specific risk disclosures, such as a surgical waiver?
But then, student waivers are meant to serve another purpose. They manage institutional liability.
The first means of managing potential liability is to designate the geographic region and court in which a legal case will be heard. This is called “controlling the jurisdiction.”
Increasingly, waivers will designate jurisdiction, usually as the study abroad program’s corporate home state. This pre-selection can give the party that constructed the waiver a kind of home court advantage, including geographical convenience, knowledge of regional law, and local relationships.
The waiver may contain an arbitration clause. Such a clause is designed to force a case into alternative dispute resolution (ADR). Think of ADR as private judging, with a trained mediator as go-between.
The waiver may also contain an indemnification clause. In the event that a case goes to trial, and the dead or injured student and/or bereaved family (plaintiff) loses, this clause may require the plaintiff to reimburse the defendant (school) for their legal expenses.
We advise reading your student waiver carefully, including all links to program policy (“requirements” and “limitations”). Better yet, take your waiver to a lawyer. Never be afraid to mark-up this legal document, keeping in mind that the person who has the most to gain, and also, to lose, is the student. Make this “agreement” agreeable, and let the study abroad program decide if they’ll take you, or not.