As a parent of college students, a mediator and a Title IX hearing officer, I am optimistic about the new provisions of the Title IX regulations concerning informal resolution. We do not know whether schools will embrace the concept, as it is not mandatory. However, students subjected to sexual misconduct may decide for themselves whether to engage in a formal or informal resolution process, if any participation at all.
An informal resolution process can provide students with a greater sense of fairness and equity. Rooted within the restorative justice field, it focuses on repairing harm instead of issuing punishment. While an informal resolution process may not be appropriate for every Title IX case, mediation has proven to be quick and confidential, as well as a process that allows for creative and self-directed results.
The Final Rule allows a school, in its discretion, to choose to offer and facilitate informal resolution options, such as mediation or restorative justice, with a few caveats:
- Both parties must provide voluntary, informed written consent.
- Anyone who facilitates an informal resolution must be well trained.
- A school may not require, as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, a waiver of the right to a formal investigation and adjudication of a formal complaint of sexual harassment.
- A school may not require the parties to participate in an informal resolution process and may not offer an informal resolution process unless a formal complaint is filed.
- At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint.
Most important, there must not be a power imbalance between the parties. For example, a school may not offer or facilitate an informal resolution process to resolve allegations that an employee (e.g., a professor or administrator) sexually harassed a student.
Previous Title IX guidance did not specifically provide for informal resolution, and mediation was prohibited because it might denigrate survivors. While this is a legitimate concern, mediation—if handled properly—can give the parties a measure of control over the proceedings.
Mediation often can achieve the same or similar results without a full-blown collegiate hearing with questioning, witnesses and a burden of proof. Resolutions can include counseling, no-contact agreements, modifications of work or class schedules, campus escort services, changes in work or housing arrangements, leaves of absence, voluntary withdrawal from school, additional training or communication and other possible accommodations that meet the needs of the parties.
I have witnessed instances where informal resolution has been successful. During the course of conducting Title IX hearings, sometimes the students themselves would raise the issue. Proceedings would cease, and administrators would facilitate a dialog between the students. In each of those cases, resolution was achieved, and the participants seemed pleased with the results that they helped craft.
In a Title IX hearing over which I recently presided, the parties agreed that the respondent would be allowed to finish the current term and would then withdraw from classes for the remainder of the school year. The respondent acknowledged responsibility and apologized for his behavior. This was a crucial gesture for the complainant, and it is a rarity in the adversarial process.
Not every Title IX case should be resolved through informal resolution. As discussed above, mediation is not appropriate when there is a power imbalance between the parties. It is also probably inappropriate in cases of aggravated assault or in instances where law enforcement is involved. Finally, the parties must not be coerced into participating in an informal resolution process. But for many other cases, mediation can provide a successful outcome for the parties.
Implementing a mediation program can be risky. What if a party decides to withdraw from the informal resolution process? What is the import of any confidentiality agreement between the parties? These and other scenarios require a thoughtful analysis.
There is no one-size-fits-all solution for a Title IX mediation program. One of the more important considerations is to ensure that the interests of the parties are at the forefront. Schools also need to be protected from liability. In order to achieve these basic goals, and to avoid potential pitfalls, mediation in the school environment needs to be properly supported and executed.
A properly supported school mediation program is one that is formalized. Because not every case is appropriate for mediation, schools should institute a process to help determine which cases would benefit from it. Informed consent and confidentiality among participants must be documented clearly. Finally, schools should have access to a pool of well-trained, professional mediators.
A skilled mediator can help ensure that a mediation program is properly executed. He or she should have clarity of purpose regarding the educational mission of the process. A school’s culture also may be relevant.
Good mediators understand the intricacies of mediator ethics and application of confidentiality rules and employ creative solutions to problems.
Schools should consider using mediators who are relatable to the students, who will provide a respectful process and who are good listeners. It is important for all participants in any mediation process to be comfortable with the mediator. Given the ages of many Title IX participants, this is especially crucial. Although no one currently has experience in this specific area, there are mediators who have acted as hearing officers in Title IX proceedings and are used to dealing professionally with students. Mediators with experience handling sexual assault claims also may be appropriate.
Finally, the coronavirus pandemic has delayed live hearings and other proceedings. Informal resolution proceedings, at least for the foreseeable future, may have to be conducted partially or entirely online. Mediators familiar with conducting proceedings on Zoom or other online platforms can meet the needs of institutions and parties that want more expeditious resolutions.
A Fair and Fulfilling Process
Colleges and universities that are considering implementing informal resolution programs have much to think about. In order to mitigate risks, such programs should be well supported and properly executed. Identifying appropriate cases is a crucial first step to a successful informal resolution. Ensuring that parties are educated about the process prior to providing consent also is important. Finally, choosing an experienced and well-trained mediator who can provide a fair and fulfilling process is essential to ensuring that the students’ interests, as well as those of the institutions, are protected.
Adrienne Publicover, Esq., counseled domestic insurers and brokers in litigation matters in state and federal courts throughout the U.S. and in the London market before joining JAMS. An active Title IX hearing officer, Ms. Publicover also brings her energy and enthusiasm to mediating complex first- and third-party insurance disputes, including those involving life, accident and disability claims, as well as health care, commercial general liability, property, directors and officers, and employment practices liability policies. She can be reached at firstname.lastname@example.org.
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