Key Takeaways
- Informal resolution of a Title IX matter requires important precursors (i.e., trainings) and specific procedural steps in order to meet the requirements under the current regulations.
- Informal resolution can take many different forms, beyond traditional mediation.
- Although many informal resolutions avoid time-consuming procedural steps in the investigation and decision-making process, the informal resolution process must be handled slowly and with delicate steps that avoid the impression that “informal” means “lesser.”
What is Informal Resolution?
The Department of Education defines informal resolution as a “process, such as mediation, that does not involve a full investigation and adjudication.” It can serve as an alternative to a lengthy fact-finding investigation, hearing, and decision-making process.
Some benefits of informal resolution may include:
- Restorative justice: Instead of enforcing a punitive process that focuses on potential punishment for policy violations, restorative justice centers on the accused party understanding the harm that they caused to the complainant, even beyond the community. Appropriate steps are then determined in order for the responding party to repair these harms.
- Cooperation among parties: In order for informal resolution to succeed, involved parties must agree to a proposed resolution facilitated by a trained mediator, either through a facilitated discussion or by “shuttle negotiation” where terms are negotiated by the informal resolution officer, and parties never meet. Parties are more likely to exit the resolution process feeling heard when they agree upon a decision.
- Emphasis on education: Parties better understand the consequences of their decisions when resolution includes an educational, rather than punishing, outcome.
- Avoiding an investigation and hearing: When parties can agree upon a resolution, they are able to bypass a lengthy and often intimidating investigation process. A complainant can revert back to a formal process at any time as long as the case has not yet resolved.
Areas of Caution
Although informal resolution presents flexibility in some areas of Title IX, many complaints are not appropriate for this option.
Title IX administrators must remember these caveats when considering informal resolution:
- Informal resolution cannot be used when a case involves allegations of an employee sexually harassing a student.
- All parties must consent to informal resolution before implementation. Title IX administrators should never push informal resolution if parties can’t reach an agreement, if they withdraw at any point, or if they prefer a formal grievance process.
- Anyone conducting informal processes or mediations must be trained in Title IX scope, impartiality and bias, party rights, and general Title IX and school policies.
- If a complainant wants to eventually pursue a formal process with a finding of responsibility and sanctions, they should not pursue informal resolution, as it will close the opportunity of a formal investigation.
Even with its limitations, informal resolution can provide flexibility for applicable cases. Title IX administrators should have a plan for this approach when appropriate.
How We Can Help
As education professionals stay informed of all federal updates and prepare for their impact, TIXC can help keep your schools compliant. For general up-to-date information and how it affects you and your institution, join us for TIXC Thursdays on the first Thursday of every month. For more information about our consulting services, including advising, hearing adjudication, and investigation, contact us at info@titleixconsult.com.