In February, we launched a multi-part series in which we provide a refresher on the key players on the Title IX team under the current 2020 regulations. While we wait for the Biden administration to release their proposed regulations, remember that the 2020 regulations are still in effect and will be for some time. With that in mind, we want to ensure that everyone is up to speed on the current roles and responsibilities of the members of their team.
Today, we focus our spotlight on the Title IX Informal Resolution Facilitator. The 2020 regulations permit institutions to facilitate an informal resolution process between parties involved in a Title IX grievance. The regulations briefly define the informal resolution as a “process, such as mediation, that does not involve a full investigation and adjudication.” There are several key timelines and requirements for the informal process, including the following:
- An informal resolution process can only take place after a formal complaint is filed.
- An institution may facilitate the informal process at any time prior to reaching a determination regarding responsibility. After a final determination, however, the institution is not permitted to conduct an informal resolution with the parties.
- The institution must provide the parties a written notice that relays 1) the allegations, 2) the requirements of the informal resolution process, and 3) any consequences resulting from participation in the informal process, including any records that will be maintained or shared.
- Both parties must consent to the informal resolution through voluntary, written consent.
- At any time, any party has the right to withdraw from the informal process and resume the grievance process with respect to the formal complaint.
- The informal process should take place within a reasonably prompt time frame.
- The informal process is not permitted to resolve allegations in which an employee sexually harassed a student.
- An institution may not require a party to undergo the informal resolution process and waive their right to a formal Title IX investigation and adjudication as a condition of enrollment, employment, or any other right.
Title IX Informal Resolution Facilitator Training Requirements
The 2020 regulations require that Title IX Informal Resolution Facilitators receive training on the following topics:
- The definition of sexual harassment;
- The scope of the institution’s educational programs or activities;
- The process of conducting an investigation and grievance process, including hearings, appeals, and informal resolution processes, as applicable;
- How to serve impartially and avoid conflicts of interest and bias; and
- Issues of relevance.
As with all other Title IX officials, Informal Resolution Facilitators must be free from bias or conflicts of interest relating to the parties involved. Ensure that your institution has an objective process in place for evaluating such conflicts of interest when it comes to the members of your Title IX team and their role in a particular case.
Additional Points and Tips
The definition for “informal resolution process” is fairly broad, so it’s up to your institution to come up with its own process and modality for communicating with the parties. Whatever process you choose, make sure that it is consistent, equitable, clearly defined, and transparent to all parties. You may need to go back and forth between the parties several times before reaching a satisfactory agreement.
Note that while the regulations include mediation as an example of an informal resolution process, the term “mediation” itself is not defined. Be aware of any legal definitions of mediation that may come into play here, which may require certain qualifications for mediators.
The regulations do not require a written agreement at the conclusion of the informal resolution process. However, it is a best practice to do so and to include, at minimum, a description of the complaint and grievance process, the terms of the parties’ agreement, and the parties’ signatures and date signed.
A tricky question arises when a party admits guilt during the informal process. Whether or not your institution decides that such an admission would also be admissible in the formal process should the informal process fall through, parties should be aware of any consequences that may result before they agree to go through the informal process.
Finally, remember that the Informal Resolution is a voluntary process—if one party does not agree, or decides to withdraw at any point, then you cannot move forward with the informal resolution and must revert to the formal process.
We know there is a lot to keep in mind here, so please feel free to reach out to any of our attorneys if you have any questions about the informal resolution process and best practices for facilitating the process at your institution. We will be back soon with our final post in this series on the Title IX Advisor, so stay tuned.
For our previous post on the Title IX Coordinator, click here.
For our previous post on the Title IX Investigator, click here.
For our previous post on the Title IX Decision Maker, click here.
*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.