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Informal Resolution Foundations

for Higher Education

Training and Certification Course

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WELCOME!

Please log in to your ATIXA Event Lobby to access the training slides, supplemental materials, and to log your attendance.
The ATIXA Event Lobby can be accessed by scanning the QR code or by visiting www.atixa.org/atixa-event-lobby .
You will be asked to enter your registration email to access the Event Lobby.
Links for any applicable training evaluations and learning assessments are also provided in the ATIXA Event Lobby.
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Any advice or opinion provided during this training, either privately or to the entire group, is never to be construed as legal advice or an assurance of compliance.

Always consult with your legal counsel to ensure you are receiving advice that considers existing case law in your jurisdiction, any applicable state or local laws, and evolving federal guidance.

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Content Advisory

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The content and discussion in this training will necessarily engage with sexual harassment, sex discrimination, violence, and associated sensitive topics that can evoke strong emotional responses.

ATIXA faculty members may offer examples that emulate the language and vocabulary that Title IX practitioners may encounter in their roles including slang, profanity, and other graphic or offensive language. It is not used gratuitously, and no offense is intended.

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Introduction

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The primary focus of this training is to introduce practitioners to Informal Resolution and its application to Title IX and allegations of sexual harassment.

Practitioners will learn about the variety of structural and policy decisions that need to be made when implementing an Informal Resolution process.

Our goal is to provide practitioners with a deep-dive into the applicable foundational elements and considerations regarding whether and how to implement Informal Resolution options.

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Department of Education (ED) Updates

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Significant staffing reductions and closure of some regional offices
Federal funding and oversight shifts

Executive Order (EO):ImprovingEduatio OucomesbyEmpoweringParents,States,and Communities(3/20/25)

– Directed the Secretary of Education to “facilitate closure of the Department” and “return authority to the States and local communities”

Civil Rights enforcement remains in OCR, but other agencies (e.g., Health and Human Services (HHS) and Department of Justice (DOJ)) appear to be ramping up enforcement in certain areas

ED released a Title IX-focused Dear Colleague Letter (DCL) (02/04/25), reinstating 2020 Title IX Regulations enforcement
Increased focus on Title VI

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Significant Federal Changes Impacting Title IX Compliance

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Executive Order: DefendngWomenfromGendrIdeolog Extremismandrstoring BiologcalTruthtotheFederalGovernment(01/20/25)

Defines sex as a binary concept – man or woman
Limited Bostokv.ClaytonCo nty’s holding, says it only applies to Title VII

– Dept of Justice issued guidance on 02/12/25 that Bostokdoes not apply to Title IX

Prohibits federal funds and grants from promoting gender ideology

Executive Order: KeepngMenOutofWomen’sSports(02/05/25)

Prohibits transgender women from playing women’s sports
Subject of active and rapid enforcement by Federal government

NIBRS User Manual Update: Replaced “fondling” with “criminal sexual contact” and provided a new definition (06/23/25)

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Defining Sex

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Should institutions implement the Executive Order’s definition of biological sex definition?

Likely depends on state law and court rulings in jurisdiction
Considerations:

Bostock applies an expansive definition of sex in employment
Residential schools/institutions are subject to the Fair Housing Act (FHA, aka Title VIII)

– FHA Regulations are still in effect and protect sex expansively

According to some federal court cases, sex includes sex discrimination that implicates sex stereotypes and sex characteristics

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For Reference: Rescinded Prior Guidance

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ED has rescinded all guidance documents inconsistent with the EOs or subsequent guidance

White House Toolkit on Transgender Equality
2024 Title IX Regulations: Pointers for Implementation
ED Toolkit: Creating Inclusive & Nondiscriminatory School Environments for LGBTQ Students
Supporting Intersex Students
Supporting Transgender Youth in School
Letter of Educators on Title IX’s 49^thAnniversary
Confronting LGBTQ Harassment in Schools
Enforcement of Title IX - Based on Sexual Orientation and Gender Identity in light of Bostok v.Clayto County
AG’s memorandum “Application of Bostokv.Clayto Co ntyto Title IX”
EEOC’s “Enforcement Guidance on Harassment in the Workplace”

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Notes on Vocabulary

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Title IX resolution processes specifically address sexual harassment as defined by the regulations
Common alternative resolution processes focus on opportunities to reduce “conflict” or resolve a “dispute”
Use of existing alternative resolution terminology is not meant to diminish the reality of sexual harassment and its effects
The Department of Education and this training uses the term “informal resolution,” but that term may not be the best fit for your institution

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Informal Resolution Overview

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Discussion:

Informal Resolution Benefits and Foundations

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“When society questions a victim’s reluctance to report, I will be here to remind you that you ask us to sacrifice our sanity to fight outdated structures that were designed to keep us down. Victims do not have the time for this. Victims are also students, teachers, parents, who can’t give up work or education…It is not reasonable to casually demand that victims put aside their lives to spend more time pursuing something they never asked for in the first place…This is about society’s failure to have systems in place in which victims feel there is a probable chance of achieving safety, justice, and restoration rather than being retraumatized, publicly shamed, psychologically tormented, and verbally mauled. The real question is not, Why didn’t she report, the question is, Why would you?” [bold emphasis added]

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Benefits

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Can be an effective way of resolving matters for parties and impacted communities
Resolution focuses on the people vs. focusing on the policy
Empowers choice and agency over the resolution
Provides a needs-based process to both address past harm and prevent future harm
Focuses on ensuring educational access and restoration
Honors privacy similar to formal processes
Offers a space for communication and understanding among parties, if desired

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Foundations

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Focus on needs
Informal ≠ casual
Intentionality
Presence
Meet parties where they are
Mutually serving
Pre- and post-process support and resources
Presence
Safety (e.g., physical, psychological, emotional)

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Complaint Types

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Policies, environments, resources, and structures

Systemic and long-term

May masquerade as relational complaints

Often no identifiable Respondent

STRUCTURAL

RELATIONAL

Individuals and groups Incident- or relationship-based

Most common complaint type

May arise during a structural complaint investigation

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Complaints and Conflicts

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Overt Conflict

Environment

Needs

Complaint

Covert Conflict

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Sources of Conflict

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Conflicts are a sign of unmet needs
There are three root causes of conflict

1

Power and Control

3

Respect and Recognition

2

Care and Connection

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Contextual Considerations

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No one-size-fits-all approach to Informal Resolution (IR)
Not all structures will fit the unique circumstances of the allegations
Policies and processes should be designed with a variety of allegations and parties in mind
IR within an educational institution is inherently different than community agency processes

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Three-Party Model

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RESPONDENT

COMPLAINANT

INSTITUTION

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Informal Resolution and Title IX

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Title IX

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“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

20 U.S.C. § 1681 & 34 C.F.R. Part 106 (1972)

Title IX has always mandated a response to sex discrimination; however, the 2020 Title IX Regulations only apply to sexual harassment complaints

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Title IX: Scope

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Discrimination

Sex Discrimination Program Access and Equity

Harassment
	Quid Pro Quo Hostile Environment Sexual Assault	Domestic Violence Stalking Retaliation
	Dating Violence

Title IX

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Historical OCR Informal Resolution Guidance

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OCR does not define Informal Resolution (IR)

Uses alternative resolution as an undefined synonym

Human resource departments have long used forms of Informal Resolution such as mediation and arbitration
OCR Guidance

2001 Revised Sexual Harassment Guidance (rescinded)
2011 Dear Colleague Letter (rescinded)
2017 Q&A on Campus Sexual Misconduct (rescinded)
2020 Title IX Regulations
2021 Title IX Q&A (updated 2022)

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The IX Commandments

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THOROUGH

PROMPT

Act reasonably to STOP discrimination

RELIABLE

EFFECTIVE

Act reasonably to PREVENT

recurrence

IMPARTIAL

EQUITABLE

Act equitably to REMEDY

effects

INVESTIGATION

PROCESS

REMEDIES

(+ fair & impartial per VAWA Sec. 304)

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Informal Resolution Application

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Application

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Title IX Regulations only control how institutions implement IR for Sexual Harassment allegations that would fall within Title IX jurisdiction
IR is optional and may be offered in a variety of forms
May offer IR for incidents that:

Fall within Title IX policy jurisdiction
Fall within another policy’s jurisdiction
Do not yet rise to the level of a potential policy violation

Collateral misconduct allegations may be resolved with Title IX sexual harassment allegations

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Title IX Regulatory Jurisdiction

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Allegations are subject to the 2020 Title IX Regulatory IR procedural requirements if:

The alleged conduct would meet the regulatory Title IX Sexual Harassment

definition, if proven

The alleged conduct occurred within the Title IX policy’s jurisdiction
Complainant is/was participating or attempting to participate in the institution’s education program or activity at the time of the Formal Complaint
Respondent is a student or employee

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Procedural Requirements & Recommendations

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Facilitator must be free of bias and conflicts of interest and have appropriate training
Records maintained for minimum of seven years
Cannot be used for allegations of employee-on-student sexual harassment
ATIXA recommends:

Facilitator not be the same person as the Investigator or Decision-maker
Clear policy/procedure language for IR

Formal Complaint

Written Notice

Voluntary Participation

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Informal Resolution Notice

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Notice for IR must include:

Allegations
IR process requirements
Any party may withdraw from IR process and initiate/resume the Formal Grievance Process prior to agreeing to a resolution
When IR precludes the parties from initiating/resuming the Formal Grievance Process for the same allegations (unless the Agreement terms are not honored)
What information the institution will maintain and whether and how it could be shared

IR information can be included in initial Notice of Investigation and Allegations

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IR Outside the Title IX Regulations

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If the alleged conduct would not meet the regulatory Title IX Sexual Harassment definition, if proven, and/or falls outside the Title IX policy’s jurisdiction:

Institution can determine its own procedural standards

ATIXA recommends:

A written statement or complaint
Notice
Facilitator being trained and free of bias and conflicts of interest
Maintain records per institutional policy

May address alleged policy violations and behaviors that would not violate policy but are impactful
Complainant does not have to be affiliated with institution
Respondent must be a student or an employee

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IR for Groups and Communities

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Groups cannot be Respondents for alleged Title IX Sexual Harassment
Some incidents have a far-reaching impact on a larger group
Opportunities for IR to address gaps that may exist between individual and community harm
Considerations

Are the involved parties agreeable?
Are the involved parties present?
Do the power dynamics allow for voluntary choice?
How expansive is the impact?

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IR for Structural Complaints

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No specific Respondent
Individuals in current roles are not always the same individuals who wrote/implemented the discriminatory policy/practice
Can necessitate Facilitator with positional authority within the institution
Two-phase resolution

Remedying the immediate complaint
System/policy/environmental change

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Timing

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IR may be attempted at any point prior to a final determination for Title IX Sexual Harassment allegations
Institutions determine whether an investigation should proceed or be paused while IR is attempted

Jurisdiction over Respondent
Party and witness availability
Evidence availability

Timing may inform IR structure or options that may be available

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Title IX Formal Grievance Process Overview

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1

INCIDENT

Formal Complaint/ Notice to TIXC

2

INITIAL ASSESSMENT

Jurisdiction
Dismissal
Supportive Measures
Emergency Removal
Referral to Another Process
Informal/Formal Resolution

3

FORMAL INVESTIGATION

NOIA
Interviews
Evidence Collection
Draft Report
Share Draft and Evidence
Review/

Comment

Final Report

HEARING

Questioning
Credibility Assessment
Determination

and Rationale

Sanctions
Remedies

4 5

APPEAL

Appeal Grounds
Determination and Rationale

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Common Off-Ramps for IR

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Intake Meeting

First Respondent Meeting

First 10-Day Report Review

Final Report Review

Any party may request to pursue IR at any point prior to a final determination

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Determining Availability & Appropriateness

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Key Values

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QUALITY

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Considerations for Appropriateness

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Factors to consider:

Allegations
Respondent’s disciplinary history
History of emotional, physical, or sexual violence between parties
Power imbalances between parties
Potential to jeopardize safety or well-being
Situations involving minors harmed by adults
Whether parties are sincere and acting in good faith

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ATIXA’s Informal Resolution Framework

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ATIXA’s Informal Resolution Framework

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ATIXA’s Framework contemplates three categories of IR:

1

Supportive Resolution

3

Alternative Resolution

2

Accepted Responsibility

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Supportive Resolution

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Title IX Coordinator (TIXC) resolves the report or complaint by providing:

Supportive measures
Remedies

Offered after a Formal Complaint, whereas supportive measures are offered in response to Notice
Respondents are typically not involved unless a supportive measure directly involves or impacts them (e.g., No Contact Order)
Parties may challenge the provision, denial, modification, or termination of supportive measures

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Supportive Resolution, Cont.

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Complainant declines to pursue Formal Grievance Process
TIXC works with Complainant to determine reasonable and appropriate supportive measures

May not unreasonably burden either party
No cost to the Complainant

Cannot disclose supportive measures to anyone other than the Complainant, unless necessary to implement the supportive measure or restore or preserve access to the education program or activity

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Supportive Resolution Foundations

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Facilitation Foundations

What does TIXC and/or IR Facilitator need to know?
Work collaboratively to identify reasonable and appropriate supports
Empower choice
Be cautious about incomplete accounts

Appropriate Documentation

Decision to decline or other resolution options at this time
Option to pursue Formal Grievance Process in the future
What was offered, declined, and implemented

How to request additional support or modifications
Document plan for future academic years

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Supportive Resolution Examples

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Examples include:

Academic adjustment
Monitoring at certain times/locations
Transportation assistance; escorts
No Contact Orders; must notify the Respondent
Counseling
Modified work schedule
Departmental training for faculty
Revised student organization event policies

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Supportive Resolution Agreement Example

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“Agreement” between TIXC and Complainant that outlines specific supportive measures to be implemented

Example:

Title IX Coordinator will contact Dr. Simmons (ENG 4301), Dr. Gaines (MAT 2205), and Dr. Lyles (POL 3700) to request they work directly with Complainant regarding academic adjustments appropriate to their courses for the Fall 2024 term
Complainant will be cc’ed on e-mails and is encouraged to work directly with faculty to make specific arrangements
Title IX Coordinator will work with Office of the Registrar to facilitate a late withdrawal from HIST 2011 without academic or financial penalty

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Accepted Responsibility

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Respondent accepts responsibility for violating policy and accepts the recommended sanction(s) prior to a final determination
Accepted responsibility may allow, but does not require, the parties to communicate directly about the allegations with the assistance of a third- party Facilitator

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Accepted Responsibility, Cont.

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TIXC, Complainant, and Respondent agree to sanctions/corrective actions
If the institution uses a progressive sanctioning model, the TIXC will need access to the Respondent’s prior disciplinary history
No appeal process if all parties agree on IR terms
Document parties’ decision to not pursue Formal Grievance Process

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Accepted Responsibility Foundations

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Facilitation Foundations

What does TIXC and/or IR Facilitator need to know?
Discuss Complainant and Respondent needs and goals
Ensure all parties are voluntarily participating
All parties must agree to findings/sanctions
Outcome enforcement procedures

Appropriate Documentation

Decision to decline the Formal Grievance Process and/or other resolution options
Signed agreement

– Sufficiently detailed Findings look like

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Signed Resolution Agreement Example

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Respondent accepts responsibility for violating the Sexual Harassment Policy by repeatedly making unwelcome sexual comments to Complainant in person and sending sexual content to Complainant via text message between March and September 2024

Respondent agrees to attend Sexual Harassment prevention training provided by Human Resources by December 15, 2024
Respondent agrees to have no contact with Complainant unless it is expressly work related
Respondent will be placed on employment probation for a period of one calendar year through October 12, 2024
Failure to adhere to this agreement will result in disciplinary action for Respondent’s failure to comply

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Alternative Resolution (AR)

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Parties agree to resolve the Formal Complaint through an AR mechanism such as facilitated dialogue, shuttle negotiation, or restorative practices
AR may allow, but does not require, the parties to communicate directly about the allegations with the assistance of a third-party Facilitator

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Alternative Resolution, Cont.

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Encompasses any mechanism used to resolve a Formal Complaint that is not a supportive resolution, acceptance of responsibility, or the Formal Grievance Process
May or may not result in formalized agreement between the parties and institution

Agreements are only binding on the parties

Should always include intake, preparation, facilitation, and closure phases
Five common alternative resolution mechanisms:

Conflict Coaching
Facilitated Dialogue
Shuttle Negotiation
Mediation
Restorative Practices

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Conflict Coaching

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Party, usually the Complainant, works one-on-one with a trained Facilitator
Discuss the behavior they want to address
Explore strategies for addressing the behavior directly with other party
Often includes role-playing practice

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Conflict Coaching

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STRENGTHS

CHALLENGES

CONTEXT CUES

BEHAVIORS

Prevents low-level concerns from escalating
Empowers parties and builds conflict resolution skills

Relies on one party’s version of the events
Dependent upon initiating party’s willingness to engage

Pre-existing relationship
Low-level conduct
Respondent may struggle with reading social cues

Unwelcome communication
Lingering or lurking
Repeated requests for dates

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Facilitated Dialogue

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Parties engage in direct conversation about the allegations
Use the assistance of a mutually serving Facilitator
Focus on providing space and framework for communication versus finding agreement

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Facilitated Dialogue

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STRENGTHS

CHALLENGES

CONTEXT CUES

BEHAVIORS

Allows for dialogue without pressure to reach an agreement
Easily adaptable to in-person or virtual settings

May leave parties feeling the situation is unresolved
Can easily turn into debate rather than dialogue

Parties open to direct interaction
Conduct may not rise to the level of a policy violation
Goal of perspective sharing and increasing understanding

Offensive speech
Not respecting boundaries
Behaviors occurring around but not directed at the

Complainant

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Shuttle Negotiation

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Most common approach being used at institutions offering IR
Third-party Facilitator acts as a go-between for the parties
Often takes several conversations with each party before resolution is reached

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Shuttle Negotiation

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STRENGTHS

CHALLENGES

CONTEXT CUES

BEHAVIORS

Allows for resolution without direct interaction
Flexible to accommodate different communication preferences

Relies heavily upon Facilitator’s accuracy and skill
Often does not address underlying feelings and needs

Parties do not want or are restricted from direct communication
Goal of sharing perspectives and reaching agreements
Parties have ongoing relationship/overlap in education, social, or employment activities

Hostile Environment Harassment
Dating or Domestic Violence
Sexual Exploitation

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Mediation

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Structured process where mutually serving Facilitator fosters an environment of open communication between parties with an intention of reaching an agreement
Facilitators tend to follow facilitative and/or transformative mediation models for Title IX complaints
Mediators tend to keep their own views of the matter hidden

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Mediation

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STRENGTHS

CHALLENGES

CONTEXT CUES

BEHAVIORS

Seeks to address short- and long-term issues
Structured to facilitate developing a tangible agreement

Assumption that both parties contributed to causing the matter being mediated
Not appropriate for matters with unresolved power imbalances
Often results in compromise; no party is fully satisfied

Parties willing to be in the same space
Limited or no power imbalances
Flexibility about what outcome may result

Hostile Environment Harassment
Sexual Exploitation
Structural Complaints

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Restorative Practices

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May take the form of a circle, conferencing, or an exchange of statements
Focuses on identifying:

Who was harmed
How they were harmed
Respondent taking accountability for causing harm
Parties determining how Respondent can best repair the harm
Reintegrating the Respondent
Responsibilities and commitments to community

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Restorative Practices

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STRENGTHS

CHALLENGES

CONTEXT CUES

BEHAVIORS

Provide Complainant opportunity to be heard and have questions answered
Allow parties to work collaboratively to determine how harm and relationships can be repaired

Cultural shift for Respondents to take accountability
Require highly skilled and experienced Facilitator
Often time-intensive for preparation and facilitation

Respondent is taking accountability for causing harm
Desire to repair or transform a pre-existing relationship
Openness to listening to others’ experiences and perspectives

Sexual Exploitation
Stealthing
Hazing

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Activity:

Introduction to David & Andrea

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Initial Contact

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David has been referred to the Title IX Office by the Office of Student Conduct. He shared that his ex-fiancé Andrea (also a student) has repeatedly contacted him since their relationship ended, including leaving notes on his vehicle on campus that stated, “This is not over;” approaching him after classes; appearing at his off-campus residence; and multiple phone calls and text messages demanding that he speak to her. Andrea has also asked David’s friends where he is and has shown up at off-campus locations where they are hanging out based on their Instagram posts.

David explains that he has repeatedly asked Andrea to leave him alone and not to contact him. But she will not comply with his requests. He believes Andrea is having a hard time letting go of their relationship, and he is now seeking your help to resolve the situation.

What steps would you take upon hearing this information from David?

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Informal Resolution Structures & Implementations

Cross-Cultural Considerations

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Culture

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“[A] set…of rules for being in the world…[and] shared cognitive approaches to reality that distinguish a given group from others.”

Adler, Nancy & Jelinek, Mariann. (2006). Is “Organizational Culture” culture bound? Human Resource Management. 25. 73 - 90.

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Cross-Cultural Considerations

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Practitioners need a thorough understanding of institutional culture and needs
Culture is learned and adaptable
People tend to defend and protect their culture
People are often oblivious to the unique customs of their own culture

Peter Drucker

Management Theorist

Culture eats

strategy for breakfast.

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Trauma and Culture

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Anyone can experience trauma and reactions vary from person to person
Culture often influences how an individual interprets and assigns meaning to trauma
Practitioners should understand trauma-informed practices in relation to cultural differences
Trauma-informed institutions have a culture that incorporates trauma-informed principles and practices
Offering IR is one way to move toward trauma-informed practices for all parties

A trauma-informed approach refers to the manner in which an institution thinks about and responds to those who have experienced or may be at risk of experiencing trauma

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Dynamics of Sex-Based Violence

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Culture often affects how individuals view and experience sex-based violence (SBV)
SBV occurs across many different types of relationships
Relationships, and the power dynamics of those relationships, have an impact on what strategies will provide the most effect responses
Cultural aspects that may influence how SBV is experienced and viewed include:

Spoken and unspoken rules about behavior
Bodily autonomy
Fear, shame, and judgement
Laws
Religious beliefs

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Culture and Conflict Resolution

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Cultures are embedded in every conflict because every conflict arises within human relationships
Affects the ways we name, frame, blame, and attempt to tame conflict
Influences how individuals engage in conflict resolution

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Approaches to Conflict Resolution

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Relationship

Goal

Avoid

Combat, Compete, Control

Compromise

Collaborate

Accommodate

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Context and Communication

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Emphasizes directness

Verbal communication is specific and literal

Directness is expected in return

More confrontational

LOW CONTEXT

HIGH CONTEXT

Relies upon physical setting and manner of communication

Nonverbal cues are essential to comprehension

May increase possibility of miscommunication

Essential to pay attention to unstated rules

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Culture and Contracts

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Not all cultures view negotiations and contracts the same way
Institutions should be cognizant of this if implementing IR processes seeking to reach an agreement

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Power Dynamics

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Power: right or ability to govern, rule, or strongly influence people or situations, including determining who will have access to resources
Many IR mechanisms require parties to share power with rather than use power over others
Power and privilege can impact the way parties view the Facilitators’ perceived identities in relation to their role

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Intersectionality

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Framework for understanding how aspects of a person’s identities contribute to parties’ views of themselves, of others, values, perceptions, and experiences they may have had
Recognizes that identity markers do not exist independently, and each informs the others
How one travels the world
Some identities may be more salient than others depending upon context
Intersectionality may impact IR processes, including how the parties engage with each other, the Facilitator, and the process as a whole

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Bias and Informal Resolution

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Bias is defined as a preference or tendency to like or dislike

A cognitive process developed over time through repeated personal experience

Implicit or explicit
Can be intentional, but generally unintentional

Can be a systematic error in our thinking process

Title IX Regulations mandate that the IR Facilitator must not have a bias or conflict of interest (e.g., against or for the parties, Complainants or Respondents generally, the content of the Complaint)

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What is Bias?

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Formed from stereotypes, societal norms, life experiences, expectations of the people around you
Can affect our perceptions of Complainants

and Respondents

Common pre-conceptions about Complainants and Respondents
Can affect our perceptions of others within the process or associated with the process

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Types of Bias

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ANCHOR

CONFIRMATION

DUNNING-KRUGER EFFECT

OBSERVER

CULTURAL

Relying heavily on the first piece of information received	Seeking information that supports something already believed	Perceiving a concept or event to be simplistic due to lack of knowledge	Evaluating another person based on inherent cognitive biases	Perceiving other cultures as abnormal, outlying, or exotic based on comparison

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Strategies for Addressing Bias

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Provide robust training

Cultural Competency
Title IX regulatory requirements
IR skills and best practices

Encourage IR Facilitator to share potential concerns or areas of bias with TIXC

Assign an alternative IR Facilitator if a potential concern or bias is present

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Alternative Resolution Process

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Who Should Facilitate?

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Institutions have discretion to determine who can serve as an IR Facilitator

ATIXA recommends it not be the Investigator or Decision-Maker for the same matter

Models:

TIXC can serve as Facilitator (not preferred)
Identified Deputy TIXC who typically facilitates
Facilitator pool

– Student affairs, human resources, faculty

Institutions may contract or hire external Facilitators
TIXC will need to determine appropriateness of Facilitator preference requests from parties

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Alternative Resolution Process

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INTAKE

PREPARATION MEETINGS

FACILITATION

CLOSURE

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Intake Meeting

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First step in process
Best facilitated by the person or pair running the process
All parties need to participate in individual intake sessions

Intake Session Goals

Build rapport
Evaluate emotional, mental, and physical safety for participation
Ascertain motivation and goals
Explain AR process and manage expectations
Identify support resources for parties
Determine what would prevent continuation of process for each party

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Facilitator Reminders

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For most parties, this is a new process
Provide reference materials for parties after the intake meeting
Facilitator’s goal is to make the process or action accessible and navigable for the parties
Do not take parties’ actions personally
Avoid making assumptions and challenge assumptions the parties make

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Positions, Interests, and Needs

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P	Positions: specific demands; a chosen stance; a solution a upon which a party has decided Example: “I want the Respondent suspended”

I	Interests: underlying motivations, hopes, concerns, desires, or worries that led a party to their position; what helps a party choose their solution Example: “I don’t want to have classes with the Respondent”

N	Needs: what a party actually must have Example: safety

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Intake Meeting Structure

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GATHER PARTY’S PERSPECTIVE

ASCERTAIN PARTY’S MOTIVATION

DISCUSS PARTY’S GOALS

EXPLORE POSITIONS, INTERESTS, NEEDS, AND FEELINGS

ASK WHAT CANNOT BE SHARED WITH OTHER PARTY

OBTAIN WRITTEN CONSENT

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Evaluation Frameworks

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Pay attention to cues indicating whether a party is in a conducive mental and emotional state for AR participation
Assessing readiness and amenability for AR is both an art and a science
Three example frameworks:

The 10 D’s of Opposition
Four Levels of Accountability
ATIXA’s Informal Resolution Framework

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10 D’s of Opposition

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DEFLECT

DIVIDE

DULCIFY

DELAY

DENY

DISCOUNT

DECEIVE

DEAL

DESTROY

DISCREDIT

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Four Levels of Accountability

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Ability to acknowledge someone was harmed

Ability to acknowledge you caused harm

Desire to understand impact of harm

Want to repair harm and relationships

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ATIXA’s IR Framework

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Checklist outlining considerations for determining appropriateness and parties’ preparedness for AR

Considerations:

Parties’ amenability to AR
Likelihood of resolution
Parties’ motivation
Civility
Results of violence risk assessment
Emergency removal implications

Complaint initiation
Facilitator skill
Emotional investment
Rationality
Parties’ goals
Resources

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ACTIVITY:

David and Andrea Part II

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Intake with David

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David explained that he started dating Andrea in high school, and they came to college as a couple. During their sophomore year, David proposed, and Andrea accepted. They moved in together in an off-campus apartment for their junior year. However, at the end of their junior year, their relationship became strained, and they started arguing on a regular basis. David shared the he decided to end the relationship over the summer and moved into an apartment with friends.

David stated that he does not want to have any further contact with Andrea and there is no reason she should be continuing to contact him (e.g., no shared children, pets, property). He requests a No Contact Order and is considering whether to file a Formal Complaint.

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David and Andrea

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Initial Screening

Is this situation appropriate for a possible IR?
Is this a scenario where we need to follow IR procedures as specified under the Title IX Regulations?
What IR method might be appropriate?
What potential outcomes can you envision based upon the information provided?
What other issues do you “spot” as you think about approaching the parties regarding IR?

Next Steps

Based on the information David has provided, what would your next steps be?
What is your process for issuing a No Contact Order?

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Conversation with Andrea

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Andrea provides similar information regarding the history of her relationship with David. She explains that when they were together, she consented to allowing David to take nude photographs of her multiple times. Andrea has heard a rumor that David still has the photos and has commented to mutual friends that he plans to post them online. Andrea has been trying to speak to David about deleting the photos, but he refuses to answer or return her calls or speak to her in person. Although Andrea was not happy about the relationship ending and would be open to rekindling things with David, all she really wants at this point is for David to delete the photos.

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Preparation Meetings

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Number and structure of preparation meetings depends on AR mechanism and parties
Facilitator should go into each meeting prepared with what they want to achieve during the meeting

AR can take unexpected turns and Facilitators should not plan for a particular outcome

Parties may not get to a place where they are ready to interact

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Nonviolent Communication (NVC)

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Method of communication reported to increase empathy and improve quality of life
Four stages include:

Observations
Feelings
Needs
Requests/Offers

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Preparation Questions

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Respondent

What do you think you need to learn as a result of this incident?
What would you like the Complainant to know/understand from your perspective?
Are there any underlying issues that contributed to your choices and behaviors that need to be addressed?
What would help you feel confident that this behavior will not happen again?

Complainant

What would you like the Respondent to learn as a result of this incident?
What would help you feel confident that this behavior will not happen again?
Do you want to be able to have contact with the Respondent following this incident?
What did you need in the moment that the incident was happening?

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Facilitation

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Opening

Introductions
Process explanation
Guidelines/ ground rules

Closing

Conversation recap
Review and finalize any agreements

Developing Agreements

Requests and offers
Negotiation
Expectations for non-compliance

Connection and Communication

Exchange of information between parties
Reflections and responses

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Agreement Terms

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Considerations:

Academic or employment overlap
Facility access and use
Social overlap
Group overlap (e.g., student organizations, employee committees)
Confidentiality and non-disparagement expectations
Contact restrictions
Respondent’s education or employment record
Financial implications (e.g., scholarships, grants, loans)

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ACTIVITY:

David and Andrea Part III

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Positions, Interests, and Needs

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David

I want Andrea to leave me alone

We aren’t in a relationship; there is no reason for us to communicate

Space, independence

Andrea

David needs to delete the photos

He has no reason to keep the photos, and I don’t want them being shared

Integrity, cooperation, respect

P

I

N

P

I

N

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David Andrea’s Resolution Agreement

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What might David request as terms of the Resolution Agreement?
What might Andrea request as terms of the Resolution Agreement?
Are there any terms that may be requested that the TIXC should not approve?

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Resolution Agreements

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Facilitator documents resolution from process notes
Once approved by TIXC: clear communication regarding what is required of parties, if anything
Copies of resolution are provided to parties for review
Institution will determine whether parties will sign an acknowledgment of acceptance
Final copy is provided to the parties and maintained by TIXC
Document sufficient details to allow for an evaluation of a possible pattern in the event of a future complaint

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Unsuccessful Resolution

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Facilitator or TIXC should meet with the parties individually to discuss why AR was unsuccessful

Gauge ability and willingness to revisit outcome and continue AR process

Refer the complaint back to the Formal Grievance Process to begin or resume as appropriate

Complainant has option to withdraw the complaint

For unapproved proposed resolutions, TIXC must provide a rationale
Facilitator should provide process notes to the TIXC to be included in the complaint file

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Non-Compliance with Agreements

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Failure to abide by the resolution agreement may result in appropriate responsive/disciplinary actions depending upon the circumstances of the non- compliance

Dissolution of the agreement and resumption of the Formal Grievance Process
Renegotiating the agreement
Referral to a conduct process for failure to comply
Application of the enforcement terms of the agreement

Where the failure to abide by the Informal Resolution agreement terms results in a failure to remedy Title IX Sexual Harassment, the TIXC may need to initiate/reinstate the Formal Grievance Process

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Example Enforcement Terms

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If any party violates any provision of this agreement, the <<Title>> may (1) declare this agreement to be null and void and refer the underlying allegations back to <<Office>> for a formal investigation and hearing; (2) refer the party in breach of the agreement to the <<Office>> for additional disciplinary action related to their failure to comply with a proper and lawful directive of a College official; (3) modify the terms of this agreement to address the breach and/or to protect the safety and wellbeing of the parties and/or the College community; and/or (4) refer the party in breach of the agreement to another College Department with authority to discipline the party based on their conduct.

Used with permission from Lake Forest College and Texas A&M University

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Process Closure

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TIXC and Facilitator responsibilities
ATIXA recommends the TIXC approve any agreements before they are finalized
Process closure includes:

Written agreements (if applicable)
Follow-up with the parties
Facilitation debrief
Documentation

If behavior continues after reaching a resolution, Complainant can initiate/resume the Formal Grievance Process to address the additional instance(s)

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Policy and Process Considerations

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Setting the Tone

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Practitioners need to consider the tone they hope to set for IR in their process

On- and off-ramps
Participant experience from intake through resolution
Policy language
Presentations and training
Print and web-based materials
Structural complaint resolution mechanisms

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Process Structure Considerations

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ATIXA recommends the TIXC have authority to disapprove a proposed resolution

Responsible for ensuring fairness within and across Formal Complaints
Requirement to stop, prevent, and remedy

Institutions need clearly defined deal- breakers
Accurate understanding of the support and comfort level in applying AR in Title IX matters

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Facilitation Structuring

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Institutions need to determine which of the IR and AR options they will offer
Identify and train Facilitators
Determine the types of complaints the institution will resolve with internal vs. external Facilitators

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Privacy Considerations

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Who is invited to participate?
Non-Disclosure Agreements

All parties sign?
Advisors
How to address a violation of the agreement? – Violation by non-affiliated parties?

Mandatory Reporting

Abuse of minor/elder/person with a disability
Threats of harm to self
Threats of harm to others

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Advisors

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Institutional policy determines if Advisors are permitted during IR
Assess whether institutional policy allows Advisors in other similar processes

Full participation/representation vs. limited role
Representative for institution

Only primary parties should be permitted to have Advisors in circle or community processes
Clearly explain Advisor role and expectations in published policy/procedures and first Advisor interaction

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Notetaking

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Facilitators often take notes to help all participants track issues and agreements during the IR process
Institutions must determine if Facilitator notes are maintained, and if so, by whom and how

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Information Admissibility in Formal Grievance Process

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Institutional choice to allow information from an AR to be used in the Formal Grievance Process

A flexible approach allows institutions options and sets expectations with parties involved in each complaint
Respondents may hesitate to participate without some assurance that information they share won’t be used against them in another venue
Confidentiality agreements/NDAs and/or information sharing expectations can be part of the agreement to participate
Carve out for “admissions” about one’s own conduct vs. a blanket statement covering all information discussed in IR

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ATIXA’s Recommended Policy Language

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“The Parties may agree, as a condition of engaging in Informal Resolution, on what statements made or evidence shared during the Informal Resolution process will not be considered in the Formal Grievance Process, should Informal Resolution not be successful.”

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Record Retention

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Title IX Formal Complaints and associated information must be maintained for a minimum of seven (7) years

IR is part of this recordkeeping requirement

Institutions need to determine:

Who maintains records
How records are retained
Whether to create and maintain recordings of AR meetings
Whether parties may request to review or amend records
Protocol for releasing records as requested and permitted by law
What is considered a “disciplinary record”

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Institutional Support for Alternative Resolution

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Interest and Openness

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Identify existing conflict/alternative resolution processes at the institution
Determine if there are community-based resources in the local area
Consider whether the institution’s mission speaks to support for AR processes

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Involving Stakeholders

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ADA/Section 504 Coordinator
Campus Safety/Law Enforcement
Clery Act Compliance Coordinator
Executive Team/Cabinet-level Administrators
Faculty/Staff
Faculty/Staff Senate
Human Resources
Legal Counsel

President
Prevention/Sexual Health Educators
Residence Life
Student Activities
Student Conduct
Student Government
Title IX Coordinator
Unions

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Program Proposal

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Understand the process to submit new program ideas at the institution
Consider proposing a pilot

Informal Proposal

Find champions
General information gathering
Meeting with stakeholders

Formal Proposal

Benchmarking data
Cost, resources, human resource analysis
Policy changes
Space allocation

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Resource Considerations

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Staffing

Structure and Space

Budget

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Policy Considerations

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Determine if institutional policy allows for AR

Permissiveness
Deal-breakers

Determine whether institutional support exists for AR and to review/amend policies
Know institutional processes and timelines for policy revision and approval

Submission and review
Approval
Legal counsel review

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Training Considerations

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Scope

Training Costs

Time

Ongoing Training

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Assessing Effectiveness

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Life Cycle of a Program

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Initial Development & Implementation

Determining Effectiveness

Process Improvement

Process Reassessment

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Determining Effectiveness

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Demonstrate IR effectiveness through qualitative and quantitative data

Qualitative Data Sources

Formal closure interviews
Informal check-ins
Post- facilitation surveys

Parties

Facilitators

Stakeholders

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Determining Effectiveness, Cont.

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Quantitative data for benchmarking and trend analysis:

Recidivism rates
Retention rates
Adherence to agreements
Number of complaints eligible for IR compared to the number that chose IR
Successful vs. unsuccessful IR
Process length for IR vs. Formal Grievance Process
Staff time spent per complaint on IR vs. Formal Grievance Process

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Process Improvement

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Data collection will inform improvements for a variety of areas:

Facilitator training and education
Staffing and resource allocation
Process/policy updates
Community awareness messaging
Benchmarking best practices

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Process Reassessment

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Self-Assessment completed by individuals within the TIX office
External review conducted by consultants or peer reviewers with substantive experience and expertise in IR
Internal review/audit conducted within the institution but not the TIX office
Benchmarking best practices
Complaint statistics and program data

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Questions?

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ALL ATIXA PROPRIETARY TRAINING MATERIALS ARE COVERED BY THE FOLLOWING LIMITED LICENSE AND COPYRIGHT.

By purchasing, receiving, and/or using ATIXA materials, you agree to accept this limited license and become a licensee of proprietary and copyrighted ATIXA-owned materials. The licensee accepts all terms and conditions of this license and agrees to abide by all provisions. No other rights are provided, and all other rights are reserved. These materials are proprietary and are licensed to the licensee only, for their use. This license permits the licensee to use the materials personally and/or internally to the licensee’s organization for training purposes only.

If these materials are used to train Title IX personnel, they are subject to 34 C.F.R. Part 106. If you have lawfully obtained ATIXA materials by registering for ATIXA training, you are licensed to use the materials provided for that training.

34 C.F.R. 106.45(b)(10) (2020 Regulations) requires all training materials to be publicly posted on a Recipient’s website. Licensees subject to the 2020 Title IX Regulations may download and post a PDF version of training materials for their completed training to their organizational website to comply with federal regulations. ATIXA will provide licensees with a link to their materials. That link, or links to the materials on that page only, may be posted to the licensee’s website for purposes of permitting public access to the materials for review/inspection only.

You are not authorized to copy or adapt these materials without ATIXA’s explicit written permission. No one may remove this license language from any version of ATIXA materials. Should any non-licensee post these materials to a public website, ATIXA will send a letter instructing the licensee to immediately remove the content from the public website upon penalty of copyright violation. These materials may not be used for any commercial purpose except by ATIXA.

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