Cozen O’Connor Institutional Response Group

Gina Maisto Smith, Chair

Leslie M. Gomez, Vice Chair

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Kendyl Gilmore

Maureen Holland

Elizabeth Honig

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Presented By:

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Agenda

Day 1

Setting the Stage

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Policy Development

2

Overview of Four Alternative Resolution Models

3

Intake Practices

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Day 2

Documentation and Recordkeeping

1

Training and Supporting Facilitators

2

Crafting Resolution Agreements

3

Bringing it Home

4

Overview of Takeaway Materials

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By the end of this workshop, participants will be able to:

• Draft or refine policy language that clearly authorizes, scopes, and sets eligibility criteria for an alternative resolution process.
• Distinguish among a focused menu of four alternative resolution models — facilitated dialogue, restorative justice conferencing, exchange of letters, and negotiated resolution agreement — and select the appropriate model for a given case.
• Build an intake process that screens cases for alternative resolution appropriately and consistently.
• Design documentation and recordkeeping practices that ensure consistency and procedural integrity.
• Identify what it takes to select, train, and support qualified facilitators.
• Draft an enforceable, clearly written resolution agreement.

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Learning Objectives

Refresh: The Harmony Collective 

• Complainant – Maya Reyes: 19-year-old sophomore, biology major, lives in Hadley Hall. Member of The Harmony Collective, a 22-member student a cappella group, for two semesters.
• Respondent – Jordan Pike: 21-year-old junior, music education major, lives off campus. Elected Music Director of The Harmony Collective, an unpaid student leadership position. As Music Director, Jordan runs rehearsals, assigns solos, and has a vote on spring tour roster decisions.
• Relationship: Maya and Jordan dated casually for about six weeks last spring and ended things mutually over the summer. They remained friendly, and both describe the relationship before October as “fine.” They are also enrolled in the same 40-person section of MUS 210 (Music and Culture), which meets Tuesdays and Thursdays.
• Others involved: Dani Okafor, the group’s President and Maya’s roommate; and Priya Shah, a first-year member (see later slide).
• Institution: A public university whose policy authorizes Alternative Resolution for student-to-student matters after a Formal Complaint is filed.

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The Harmony Collective: Incident Report

The Harmony Collective held an off-campus “semester kickoff” party at a house rented by several senior members. Alcohol was available. Maya, who is under 21, had two or three hard seltzers. Jordan had “four or five beers” by his own account.

Around midnight, Jordan found Maya alone in the kitchen and said he “missed” her. He leaned in to kiss her. Maya stepped back and said, “Jordan, no, we’re not doing this.” Jordan stepped closer and tried to kiss her again, and then a third time. Each time he moved closer, until he stood between Maya and the only doorway and she was backed against the counter. He never touched her.

Maya said, “Stop. I mean it.” Jordan replied, “Whatever. You’re such a bitch,” and walked out. Maya says she felt trapped and “genuinely scared of what he would do next.” Dani found her shaking and drove her home.

Between 1:00 a.m. and 3:00 a.m., Jordan sent Maya 14 texts, alternating between apologies (“I’m so sorry, I was drunk”) and comments about their past relationship (“you didn’t have to be like that”). Maya did not respond.

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The Harmony Collective: Incident Report (cont.)

Over the next three weeks, the situation escalated within the group:

• On October 6, Jordan posted a screenshot of an old, flirtatious text from Maya in a private group chat with four male members, captioned “she’s acting like she wasn’t into it lol.” One member forwarded it to Dani.
• On October 13, Jordan reassigned Maya’s solo in the winter concert to another member, citing “blend issues.” Two members told Dani the change “felt personal.”
• On October 17, Jordan waited outside Hadley Hall for about 20 minutes to “talk things out.” Maya saw him from her window and did not go downstairs.

Maya stopped attending rehearsals and missed two MUS 210 classes. Maya has asked to file Formal Complaint alleging sexual harassment (repeated unwelcome sexual advances and sex-based verbal harassment) and stalking-type conduct. Supportive measures include a mutual no-contact directive and a seat change in MUS 210.

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The Harmony Collective

After their intakes, both Maya and Jordan expressed interest in participating an alternative resolution process and agree to a negotiated resolution process; although Jordan expressed interest in a facilitated dialogue or restorative conference, Maya remains reluctant.

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The Harmony Collective: Maya's Pre-Conference Meeting

• Maya shares that hardest thing right now is seeing Jordan around campus and being in the same class and a capella group as him. Their friends are trying to stay out of it, but some seem to have taken sides and Maya hates for the group to feel so split.
• Maya says that she wants to be able to continue to sing and be a part of both her music class and the acapella group, without worrying about Jordan. She is open to him still being a part of the  group, if he can show he won't do the same thing again to her or any other women on campus. She also wants him to understand what he did was wrong.
• Maya has trouble describing how Jordan harmed her; she avoids the facilitator's questions about what happened, and instead focuses on what she wants going forward. She shares that since the start of the process, she has been able to sleep a little better with counseling support, although she worries about what might happen if they are not able to resolve it.

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The Harmony Collective: Jordan's Pre-Conference Meeting

• Jordan is eager to share what happened and reiterates his account from the intake: he does not dispute trying to kiss Maya, calling her a “bitch,” the texts, the screenshot, or going to Hadley Hall. He says he “thought she was into it at first,” “never touched her,” and “had no idea she was scared.” He calls the insult “something I said out of frustration.” He denies the solo change was retaliation but admits he “was angry” when he made it.
• Jordan shares how important the acapella group is to him, both personally and professionally, and he wants to remain in the group. 
• Jordan expresses a willingness to apologize for how he impacted Maya, although he notes that he does not see why what happened requires a formal complaint process, and really just wants this all to be over so that he can focus on preparing for graduate school. Jordan says that he will apologize only verbally, in a facilitated dialogue and expresses concern over how the information that he shares in the process will be used in the future.  

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As the facilitator, are you ready to move to begin to discuss the terms of a negotiated resolution agreement with the parties in your next meeting? If not, what questions or topics would you still like to explore with the parties before discussing terms of a negotiated resolution agreement?�

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The Harmony Collective: Facilitator Meeting with Maya 

After conducting pre-conference meetings with both parties, you schedule another meeting with Maya. Your meeting with Maya explores the following topics: 

• Check-in. Maya shares that she continues to be hopeful about this process, but the acapella rehearsals are becoming harder and they have a performance coming up. She wants this process to end soon.
• Maya shares that she's spoken with a few friends and her mom, and if Jordan is willing to leave the group, she is willing to end the complaint process and call it resolved. She just doesn't see how he can show that he won't do this again.
• You ask Maya to reflect on her overall goals for the process – what do you want out of the process – and she shares that she wants Jordan to acknowledge what he did was wrong, and not do it again. She reiterates she doesn't know if he can do this, and says him leaving the group seems like the only way out.

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As the facilitator, you share with Maya what information you will bring back to Jordan in your next meeting with him: what information do you communicate with Maya that you will share back? What additional information might you want to explore with Maya before your meeting with Jordan?�

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The Harmony Collective: Facilitator Meeting with Jordan 

You then meet with Jordan, where you discuss the following: 

• Check-in. Jordan says it's been really awkward in the group lately, but he's just trying to focus on the upcoming performance. He doesn't see why this is a big deal and expresses frustration at everyone knowing his business. 
• Jordan reiterates his willingness to apologize so long as it’s not on his record.
• You share that Maya has asked Jordan to leave the acapella group and Jordan becomes agitated and begins to cry. He shares that leaving the group would impact his scholarship and graduate school prospects.

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As the facilitator, what is your next step here? What additional questions may you want to explore with Jordan? What information will you communicate back to Maya? 

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The Harmony Collective: Facilitator Meeting with Jordan 

At the close of your last meeting, you and Jordan agreed to meet again within the next week. Jordan said he needed some space, and he agreed to speak with his support person, and bring them to your next meeting. Jordan shares that while he's not willing to leave the group, he is willing to do the following: 

• Write an apology. Jordan shares a draft, in which he writes that he had a tough time with their breakup, approached Maya in the kitchen at the party, and called her "bitch" when she backed away. Jordan said he understands that this could have made her feel afraid, and he is sorry.
• Education. Jordan agrees to participate in the University's three-part course on healthy relationships, and meet with a prevention educator after each session to discuss what he's learned.
• Acapella group. Jordan agrees to step back from leadership responsibilities in the acapella group and switch to a different section of the Music class.

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As the facilitator, what is your next step here? �

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The Harmony Collective: Debrief

• Jordan’s apology mentions only the kitchen and the insult, not the repeated advances, blocking the doorway, the texts, screenshot, and waiting outside Hadley Hall. How would you talk with Jordan about real acknowledgment, which is Maya’s core goal, without writing the apology for him?
• As Music Director, Jordan assigns solos and votes on the tour roster. He took away Maya’s solo and acknowledges he was “angry” when he did so. How would you address questions about whether Maya’s solo should be restored?
• Maya asked that Jordan leave the group. He offered to step back from leadership and change class sections. How would you bring the offer back to Maya and tie it to her stated interests?

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The Harmony Collective: Debrief, cont’d

• Jordan has offered to apologize only if it “stays off his record.” He is worried about how what he shares will be used. How would you explain candidly how the information is kept, who can see it, and how it could be used?
• Maya wants this process to be over soon. Jordan wants it to be over before graduate school. How would you check that the agreement/interest in informal resolution is not the product of fatigue?
• The terms include a three-part course with educator meetings and a leadership step-back. Who will confirm completion, what deadline counts as a breach of the agreement, and what happens next?

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Section Overview

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01

Consistent documentation

A practice that supports legal compliance and clear decisions without over-formalizing informal resolution.

02

Case file boundaries

What belongs in the case file and what should remain outside it.

03

Recordkeeping over time

Practices that endure and support review by accreditors, regulators, and courts.

Consistent Documentation

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Proportionate

detail

Capture the steps and outcome needed to explain the process, without a transcript of every discussion.

Common standards

Shared templates and a consistent checklist across facilitators and resolution models.

Decision-making

Record when/how the process was discussed, the parties’ interest, voluntariness, and key institutional decisions, such as appropriateness.

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Clear expectations

Explain documentation, access, and confidentiality limits before participation.

Consistent Documentation

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Documentation Imperatives

Memory Markers

• Instead of simply obtaining the parties’ voluntary consent to participate in Informal Resolution, document it in an email back to them
• Exploration: Why?

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• “As we discussed when we met…”

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• Key concepts to include:
• Voluntariness, ability to revert to formal at any point before resolution is reached
• Availability of supportive measures for both parties

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Consistent Documentation

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Documentation Imperatives

The Parties’ Agreement Must Anticipate Breach

• Need to outline what constitutes breach of the agreement.
• e.g., When do delays in completing an agreed-upon step become a breach of the agreement?

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• Avoid subjectivity to the extent possible
• e.g., Agreement not to disparage the other person

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Consistent Documentation

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Documentation Imperatives

Maintain a Single Repository

• Especially when there are hand-offs in the process (Title IX Coordinator/intake 🡪 IR facilitator 🡪 Title IX Coordinator), ensure that there is a single “official” repository and ensure that all records make it into that repository

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• Especially important when informal resolution processes are led by campus partners who are not accustomed to maintaining documentation

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Case File Boundaries

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Core case record

• Written notice of allegations
• Written consent/memory markers
• Parties’ final agreement
• Closure communications
• Monitoring documentation

Process history

Key decisions and communications that explain the outcome

Working materials

Working drafts and facilitator notes need clear policy rules for storage and retention.

Separate storage does not automatically make a record confidential or exempt from retention.

Consult counsel/records officer before exclusion or disposal, especially when preservation obligations apply.

Recordkeeping Over Time

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Accountability

Designate an office of record and a secure repository beyond individual facilitators’ files.

Retention/Preservation

Apply the governing retention schedule and any legal hold before routine disposal.

Continuity

Consistent file names and version control help successors find the final agreement and track completion.

Review Readiness

Check records for consent, key decisions, outcome, and follow-up rather than relying on memory.

Practice: The Harmony Collective

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Practice: The Harmony Collective

• Write a breach clause for Jordan’s leadership step-back. Answer these questions:
• Which policy will apply?
• Who investigates, adjudicates, and sanctions?

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PREVIEW: Training on Recordkeeping

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TAKEAWAY

Facilitators must have consistent practice and application of institutional recordkeeping requirements

In practice (checklist), what does this include?

• Written notice of allegations
• Parties’ written consent, including information shared regarding process requirements, consequences of participation, information sharing, and any other relevant policy elements
• Agreement (if reached)
• Close out letter
• Monitoring agreement

Institution must retain all materials used to train informal resolution facilitators for 7 years, and post on website. 34 C.F.R. § 106.45(b)(10)(i)(D).

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Takeaway Materials

Policy language

Authorizing and scoping an alternative resolution option

Screening checklist and script

For an alternative resolution process

Model comparison guide

Guidance on when each model is appropriate

Documentation templates

Documentation and case file templates

Facilitator checklist

Training and qualification checklist

Resolution agreement template

With drafting guidance

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Section Overview

• Key qualifications: what makes a facilitator qualified?
• Ongoing training, calibration & support: what does effective and ongoing support look like for facilitators?
• Conflicts of interest & maintaining neutrality: what are a facilitator’s responsibilities?

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Starting with the end in mind, in 1-2 words, what are the primary purposes of providing robust training and support for facilitators?

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Key Qualifications

Knowledge

Skills

Shared

Language

Effective

facilitator

Knowledge

A thorough understanding of institutional policy, including threshold requirements and process parameters and safeguards, the dynamics of sexual violence and identity-based harm, and the process models available. 

Skills

The core competencies that a facilitator needs to apply their foundational knowledge of alternative resolution and effectively implement an alternative resolution process.

Shared Language & Values

A common vocabulary and the core beliefs that guide how the institution talks about alternative resolution  and how a facilitator approaches the work, especially when things are difficult

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Foundational Knowledge: Policy + Models

• Policy. Facilitators have a functional understanding relevant institutional policies, including the following elements:
• Threshold requirements for alternative resolution.
• Process parameters.
• Sexual violence & identity-based harm.
• Model application. How does (each) model work in practice?

Knowledge

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Threshold requirements.

• Voluntariness
• Appropriateness
• Readiness
• And, for facilitator – impartial and free from conflict of interest or bias

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Knowledge of Policy: Process Framework

• How does the process begin? Formal complaint, written notice & written consent to participate
• What are the “requirements” of the process? Facilitator must have knowledge of “the requirements of the informal resolution process” 34 C.F.R. § 106.45(b)(9)(i).
• How does the process conclude? Facilitator must have knowledge of “resolution,” e.g., when and how a process concludes (“the circumstances under which [the informal resolution process] precludes the parties from resuming a formal complaint arising from the same allegations”). 34 C.F.R. § 106.45(b)(9)(i). 

Process Framework

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REFLECTION QUESTION

In practice (checklist): what are the requirements of your AR process(es), shared across models?

Knowledge of Policy: Procedural Safeguards

Procedural safeguards

What are the facilitator's responsibilities for monitoring and assessing throughout process?

• Information sharing
• Impartiality, Conflict of Interest, and Avoidance of Bias.
• Ongoing: voluntariness, appropriateness, and readiness

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Knowledge of Policy: Sexual Violence and Identity-Based Harm

• Facilitator must have working knowledge of sexual violence and the types of identity-based harms that may be resolved through AR, including policy definitions of discrimination, harassment, and sexual misconduct as well as manifestations, nuances, and impact
• For the resolution of sexual harassment complaints, facilitator must be trained on:
• “[T]he definition of sexual harassment” in the Title IX regulations and institutional policy;
• “[T]he scope of the [institution’s] education program or activity."

REFLECTION QUESTION

In practice (checklist): what types of complaints are available for alternative resolution?

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Knowledge of Models

• Model process
• Steps involved in each process (e.g., negotiated resolution agreement, exchange of letters, facilitated dialogue, shuttle diplomacy, conferencing, circle practices)
• Party role & facilitator roles across models
• Specific topics on model-specific training may include:
• Preparatory work, including pre-conference/ pre-meeting facilitation
• Agreement-writing, including how to make “doable, clear, realistic, and measurable” (Goldblum at 217).
• Agreement monitoring, including whose responsibility and how to monitor compliance and follow-up with participants. (Goldblum at 217).
• Recordkeeping, as defined in policy, what records does the facilitator create and requirements for retention. (7 years)

REFLECTION QUESTION

In practice (checklist): what models does your institution offer?

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What beliefs are most important to you and your team, that inform the way you approach alternative resolution, help you when things are difficult, and fill you with purpose in the work? (B. Brown, Values Exercise)

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One Approach: Strategic Mapping

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Brainstorm

With your team, discuss each element of the strategic map questions:

• What challenges do you want to address through AR?
• What opportunities are there through providing AR?
• How do you deliver AR to your community?
• What are the benefits of AR?
• What's the takeaway that you want people to understand about AR on your campus?

2

Put it together

Draft a statement that incorporates the team's responses to these questions in a concise description that will address stakeholder, leadership, and other community questions about your AR program.

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Share out!

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• Trauma-informed practice
• Active listening & ability to reflect
• Multi-cultural competence
• Willingness to engage and address difficult subjects and ability to work through strong emotions
• Recognition of personal and professional limits
• Humility, openness and ability to examine personal biases and assumptions in process
• Impartiality
• Facilitation training, which may include , e.g., restorative justice, conflict coaching, shuttle diplomacy.

Skills & Core Competencies

For discussion

What skills and core competencies do you think are most essential? What's missing from this list?

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What skills and core competencies do you think are most essential? What's missing from this list?�

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Training: Putting it Together, a Model

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Initial, multi-part foundational training (annual) on key qualifications: knowledge, context & application

• Knowledge:
• Policy: threshold & process parameters and safeguards
• Sexual violence + identity-based harm
• Models available
• Context: understanding of shared language and values that support alternative resolution
• Application: Skills-based, practical learning that focuses on the core competencies (internal and external options)
• Conflict of Interest & Impartiality. 

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Ongoing, regularly-scheduled skills-based development opportunities

2

Annual reflection and discussion on alternative resolution practices and assessments

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1

Initial

training

2

Ongoing

development

3

Annual

reflection

Ongoing Training, Calibration & Support

For reflection

What does effective and ongoing support look like for facilitators?

Ongoing support

• Ongoing Learning
• Calibration through case-by-case consultation
• Professional and emotional support

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Ongoing Learning

1 Ongoing Learning

2 Case-by-case consultation

3 Professional & emotional support

Purpose. Professional development, through providing opportunities (and expectations) for deepening key qualifications (foundational knowledge + skills + shared language)

Skill-building

Deepening procedural understanding and facilitation skills, for example

• Pre-conferencing
• How to approach specific issues that may arise in process, e.g., “revictimization, victim-blaming, intimidation, unwillingness to accept responsibility, reluctance to speak during the process, or solely punitive mindset.” (Goldblum, 217)
• Types of harm and how informs possibilities for repair.
• Apologies and exchange of letters
• Agreement writing

Communities of Practice

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Calibration through Case-by-Case Consultation

1 Ongoing Learning

2 Case-by-case consultation

3 Professional & emotional support

Purpose. To provide case-by-case support for facilitator to provide space for foundational check-ins (voluntariness, conflict of interest, power differential concerns), navigating complicated cases, and ensuring consistency across processes

What is the purpose of consult?

Escalation, understanding of past practice, brainstorming potential avenues forward, check-in regarding foundational elements

Who is appropriate to consult?

• Conflict of interest mapping
• Who in office may have other conflict of interest? E.g.,
• Who would investigate this matter and/or be decision-maker or appeals decision-maker if part(ies) opted to return to formal resolution process?
• Who would facilitate informal resolution process if current informal resolution facilitator identified conflict of interest?
• Possible options. Title IX Coordinator; counsel's office; other AR facilitators (internal); AR facilitators (external, consider confidentiality)

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Professional & Emotional Support

1 Ongoing Learning

2 Case-by-case consultation

3 Professional & emotional support

Purpose. To invest in facilitator longevity, by supporting whole person through relationship-building with other facilitators – providing opportunities for personal and professional growth and health.

Model

Community of Practice

Model

mentorship or apprenticeship opportunities

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Conflict of Interest & Maintaining Neutrality

Conflict of Interest & Impartiality, a requirement

• Facilitator must “not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.” 34 C.F.R. § 106.45(b)(1)(iii).
• Process for conflicts (within policy).

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Multi-partiality, a facilitation approach

• Facilitator “attends to the needs of all parties involved, making space for them to participate, giving them a voice in both procedural and outcome decisions, and equalizing, to the extent possible, power imbalances.” (Eerkes at 69)
• Neutrality + Compassion

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SUPPORTING BOTH CONSIDERATIONS

Training requirement. Facilitators must receive training on “how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias” 34 C.F.R. § 106.45(b)(1)(iii).

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Training on Recordkeeping

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TAKEAWAY

Facilitators must have consistent practice and application of institutional recordkeeping requirements

In practice (checklist), what does this include?

• Written notice of allegations
• Parties’ written consent, including information shared regarding process requirements, consequences of participation, information sharing, and any other relevant policy elements
• Agreement (if reached)
• Close out letter
• Monitoring agreement

Institution must retain all materials used to train informal resolution facilitators for 7 years, and post on website. 34 C.F.R. § 106.45(b)(10)(i)(D).

What areas at your institution are responsible for or whose work touches on alternative resolution?�

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A Whole-School Model for Restorative Practices

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Participant Assessments

ASSESSMENT

Invite parties to complete a voluntary assessment of alternative resolution process at conclusion of process

Consider a follow-up assessment approximately 3 to 6 months out, considering:

• Process satisfaction.
• Outcome satisfaction.
• Change in understanding of impact, felt sense of safety, and probability of harm recurring. (Cerdera et al, pp. 10-11).

Informs

Facilitator training going forward, and opportunities for ongoing after actions.

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Learning Across the Campus Community

Cultivating cross-campus partnerships

• Invitations for ongoing, mutual learning. 
• Recurring one-ones. 

Capacity building, a community approach

• Core facilitators
• Agreement partners, e.g., housing, dining, prevention education opportunities, etc.
• Other conflict resolution practitioners on campus
• Referrals
• Leadership support

Community-building circles, a model

• Build capacity for facilitators, relationships across the community, and increase familiarity with restorative practices
• Connection circle topics, for example: check-in circle, values exploration circle, celebration circle, etc. 

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Transitioning from Negotiating to Drafting

• Preserves records
• Voluntariness and informed consent
• For instances where restorative circles or other discussion-based resolution closes the matter and was appropriate, may include an acknowledgement that the restorative process closed the process in a satisfactory manner.

DRAFTING AGREEMENTS

Opportunity to take terms essential for the parties and terms essential for the institution and combine into one final resolution of the matter

Written documentation signed by both parties is essential, even in instances where restorative circles or other methods of resolution.

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Disclosures to the Parties

BEFORE FINALIZING

Before finalizing any agreement, parties should be made aware in writing that:

1

The matter will be fully and finally resolved by the written instrument, and the matter may not be reopened.

2

The terms of the resolution will not be subject to appeal

3

The Title IX office will maintain a copy of the agreement, both for its recordkeeping obligations and also to ensure that any portions of the agreement requiring further action (i.e. stayaway orders) are faithfully carried out.

4

While the institution will protect the privacy of the parties, cannot guarantee confidentiality in event of subpoena or other lawful request for information. (Check with local counsel).

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Elements of a Resolution Agreement

AGREEMENT CONTENT

Identifying information for your file (i.e. case numbers, party names, contact information)

Statement of voluntary and written consent

Will generally want to indicate that statement that informal resolution means that no finding of responsibility was reached through the formal process, even where the parties are agreeing to accountability measures such as apology letters.

Signatures of both parties and representative of the institution

Written memorialization of disclosures (see previous slide-may be separate as appropriate)

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Common Elements of Informal Resolution Agreements

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AGREEMENT TERMS

Acknowledgement of harm/apology letter

Written reflections

No Contact Directive

Schedule modifications or other supportive measures in place long term

Housing Relocation

Mandatory coaching, counseling, or educational sessions

Restrictions on participation in certain activities

Common Pitfalls/Hazards

01

Vague Terms

02

Terms of Unlimited Duration

03

Lack of Visibility for Enforcement

04

Lack of Clarity re: Breach

05

Over-Promising confidentiality

06

Terms that do not discharge institutional duties

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Vague Terms

• Some clauses may be too vague for enforceability:
• Non-disparagement agreements
• Poorly defined No Contact Agreements
• Confidentiality agreements
• Counseling or Educational agreements without specificity

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Fixing Vague Terms

PITFALL: VAGUE TERMS

INSTEAD OF

“The Respondent will complete appropriate training.”

TRY

"Respondent will complete the Cozen O’Connor program on consent and bystander intervention by December 1, 2027 and submit a certificate of completion to the Title IX office within 5 business days."

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Agreements of Unlimited Duration

• Terms should be finite and scoped appropriately for timing
• Should not place any restrictions on contact that could be read to bind the parties after they leave the institution (i.e. no contact directives of indefinite duration)

Fixing Terms of Unlimited Duration

PITFALL: UNLIMITED DURATION

INSTEAD OF

“The Respondent will have no contact with the Complainant.”

TRY

"Respondent will not contact Complainant in person, by phone, text, email, social media, or group messaging, or through third parties, from the date of this agreement until November 1, 2026, or the date on which the Respondent is no longer attending, employed by, or affiliated with the University, whichever date is later. Incidental contact in shared spaces is not a violation if Respondent promptly leaves or disengages."

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Common Pitfall: Lack of Visibility or Enforcement

DRAFTING HAZARD

Drafting terms that the institution cannot see, and therefore cannot enforce.

“Respondent will abstain from alcohol”

“Respondent will attend counseling”

“Respondent will apologize”

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Visibility and Monitoring Mechanisms

• Periodic check-ins for ongoing terms
• Set dates for key term completion
• Agreement on deliverables for written materials
• Page limits
• Who reviews
• How materials will be delivered to parties
• For terms such as counseling, agreement will need to contemplate verification of attendance and good faith participation. Obtain waiver of confidentiality provisions applicable at your institution
• HIPAA
• State law (consult counsel)

MONITORING

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Ensuring Visibility

PITFALL: LACK OF VISIBILITY

INSTEAD OF

“This agreement will be monitored.”

TRY

“The Title IX office will confirm completion of each term by its deadline and issue a close-out letter when all terms are complete.”

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• Agreements should include information regarding:
• Whether the agreement being breached returns the dispute to the Formal Resolution process
• Benefits and risks: inconsistent determinations about underlying case and the triggering event for reopening
• What standard of proof will be required for breaches of the agreement if not returned to the formal process
• Who adjudicates disputes around compliance with the agreement:
• (i.e. Title IX for continued formal resolution, or student conduct/HR for violation of a University Directive)
• Any other consequences for breach, such as:
• Sanctions for violating University directive

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BREACH PROVISIONS

Terms Contrary to Institutional Needs

• Institution is also a party to this agreement because it approves the arrangement.
• Even where the parties agree to terms, consider:
• Community safety
• Feasibility
• Reasonableness/Appropriateness
• Institutional requirement to address harassment and prevent recurrence in Title IX or Title VI.

INSTITUTIONAL REVIEW

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A Note: How Far can Informal Resolution Go?

• The Department believes that the robust disclosure requirements of § 106.45(b)(9), the requirement that both parties provide voluntary written consent to informal resolution, and the explicit right of either party to withdraw from the informal resolution process at any time prior to agreeing to the resolution (which may or may not include expulsion of the respondent), will adequately protect the respondent’s interest in a fair process before the sanction of expulsion is imposed. Accordingly, the Department believes that prohibiting recipients from using informal resolution where it results in expulsion is unnecessary; if expulsion is the sanction proposed as part of an informal resolution process, that result can only occur if both parties agree to the resolution. If a respondent, for example, does not believe that expulsion is appropriate then the respondent can withdraw from the informal resolution process and resume the formal grievance process under which the recipient must complete a fair investigation and adjudication, render a determination regarding responsibility, and only then decide on any disciplinary sanction.
• Preamble to 2020 Regulations, Federal Register p. 30407

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REGULATORY NOTE

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Key Takeaways

Draft for enforceability:

Specific

Measurable

Visible

Plan monitoring or check-ins on key terms

Address breach before it happens

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The Harmony Collective:

• Jordan has agreed to the following terms:
• Written apology
• Education.
• Stepping back from Acapella group leadership and music class.

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What should your agreement include regarding Jordan's apology?

The Slido app must be installed on every computer you’re presenting from

What should your agreement include regarding Jordan's educational agreement?

The Slido app must be installed on every computer you’re presenting from

What should your agreement include regarding Jordan's agreement to step back from group leadership?

The Slido app must be installed on every computer you’re presenting from

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What are you walking away with after today's training? �What is one step you will take after this training related to alternative resolution practice at your institution?�

The Slido app must be installed on every computer you’re presenting from

Questions?

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References

• Andrea Goldblum, “Restorative Justice from Theory to Practice” at 217 in Reframing Campus Conflict (2020).
• Brene Brown, Living Into Our Values Exercise, available at https://brenebrown.com/resources/living-into-our-values-3/ (last visited Oct. 30, 2026).
• David Karp, Little Book of Restorative Justice for Colleges and Universities (2015).
• Deborah Eerkes, et al., Essential Elements for Non-Punitive Accountability: A Workbook for Understanding Alternative Responses to Gender-Based Violence. Courage to Act: Addressing and Preventing Gender-Based Violence at Post-Secondary Institutions in Canada (2021).
• Desirée Anderson, "The Use of Campus Based Restorative Justice Practices to Address Incidents of Bias: Facilitator's Experiences: A Dissertation" (May 2018).
• Donna Hicks, Dignity (2011).
• Harvard University Resolution Agreement, OCR Complaint No. 01-24-2155 (Jan. 17, 2025), https://ocrcas.ed.gov/sites/default/files/ocr-letters-and-agreements/01242155-b.pdf.
• Madison Orcutt, Patricia Petrowski, David Karp, & Jordan Draper, "Restorative Justice Approaches to the Informal Resolution of Student Sexual Misconduct” 42 J. for Coll. & Univ. Attnys. 2 (2021), available at https://www.nacua.org/resource/restorative-justice-approaches-to-the-informal-resolution-of-student-sexual-misconduct/.
• Pablo Cerdera, Carrie Landrum, Aley Menon & Patricia Petrowski, "Beyond Investigations: Emerging Strategies for Resolving Civil Rights Complaints Through Informal Resolution," Presented at NACUA Annual Conference, June 29-July 2, 2026.
• University of Illinois at Urbana-Champaign Resolution Agreement, OCR Docket #05-20-2325 (Sept. 3, 2024), https://ocrcas.ed.gov/sites/default/files/ocr-letters-and-agreements/05202325-b.pdf.

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Use of Slides

• This PowerPoint presentation is not intended to be used as a stand-alone teaching tool.
• These materials are meant to provide a framework for informed discussion, not to provide legal advice regarding specific institutions or contexts.
• All rights are reserved to Cozen O’Connor.

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