Mediation is a voluntary process that assures confidentiality and gives parties the control to hash out their own issues. It allows for direct communication in a non-confrontational and non-intrusive setting. Alternative dispute resolution methods like mediation have been successfully utilized in various disciplinary matters in secondary education institutions. For students who want to skip the long and drawn out formal disciplinary route, it has become a very attractive option. But it's never been considered a viable approach to Title IX sexual misconduct cases, until now.
Under the Obama-era Title IX guidelines, the resolution of sexual misconduct or assault allegations by mediation was never encouraged, and in some cases, was prohibited. This position remained intact despite that when misconduct allegations led to lawsuits, many were eventually settled through mediation. The Obama administration's firm stance on anti-mediation resolution methods was, however, established with good intention. Due to the delicate nature of these allegations, face to face interactions could prove to be traumatic in some cases, but not all. Hence why the Office for Civil Rights (OCR) came to a different, less restrictive decision.
In September of 2017, after the Department of Education withdrew old guidance documents, the OCR issued interim questions and answers relating to how schools should address sexual misconduct. The interim guidance document specifically provided the following:
Question 7: After a Title IX complaint has been opened for investigation, may a school facilitate an informal resolution of the complaint?
Answer: If all parties voluntarily agree to participate in an informal resolution that does not involve a full investigation and adjudication after receiving a full disclosure of the allegations and their options for formal resolution and if a school determines that the particular Title IX complaint is appropriate for such a process, the school may facilitate an informal resolution, including mediation, to assist the parties in reaching a voluntary resolution.
Essentially, due to this new interim guidance, students may use mediation to resolve sexual misconduct matters under the appropriate circumstances if it is by voluntary agreement by all parties. All forms of mediation will not look the same. These sessions may be led by an internal ombudsperson, provide an outside private mediator, or use an agency. Also, student attorney's may be able to represent their client's needs and interests in these sessions. Ultimately, some parties reach an agreement that mirrors the remedies brought about through the formal hearing process or litigation, or tailor remedies that are most suitable to the situation.
Title IX Advisor Helping Clients Nationwide
As an attorney representing student respondents in sexual misconduct claims nationwide, I agree that mediation can be a viable approach to the resolution of such allegations. By exploring the interests of each party, and creating a remedy that can be agreed upon by these parties, more favorable results may be available for students. With more lawsuits than ever made against colleges and universities, it's evident that students on both sides of a complaint are unhappy with the win-lose model that is perpetuated by the current Title IX adjudication process. Contact me, Joseph D. Lento online or give me a call at 888-535-3686 today for more information about my representation and your case.