The U.S. Department of Education’s proposed regulations would let colleges and universities decide whether and how to incorporate informal resolution into their existing Title IX policies. Academic administrators across the country have been considering whether informal resolution can effectively balance student well-being with potentially conflicting institutional interests following a Title IX determination.
We believe that informal resolution, when properly carried out in appropriate cases, can serve the interests of everyone involved.
Let’s start with the “whether” question. Is informal resolution right for your college or university?
While academia is a unique environment and Title IX is a unique field, there are important parallels, as well, to what might be called “general civil litigation.” For more than 40 years, JAMS has been at the forefront of an evolution in the resolution of all types of civil cases, from employment and discrimination to housing and construction that has been characterized by an increasing use of mediation. Much of what we’ve learned is applicable to colleges and universities.
While our experiences may be anecdotal, they’re backed up by decades of psychological research. According to JAMS Institute Executive Director Richard Birke, “People like to control their destinies. Child psychologists have shown that the surest way to make an infant cry is to restrain them when they want to move. More relevant to us are psychological phenomena like the illusion of control documented by Ellen Langer and others that show we strive so hard to control our destinies that we develop blind spots that lead to errors. People like mediation because, relative to trial or a form of adjudication, they retain a significant degree of control. That control factor is huge in civil litigation, and there’s every reason to believe it’s just as significant in Title IX and the myriad other disputes in which an academic institution may find itself.”
The question of whether to employ informal resolution is also a question of when, or in what situations. Having served top colleges and universities across the country, we’ve seen circumstances that may be amenable to a voluntary resolution. Cases in which the facts are not contested and/or there are no allegations of violence may be candidates for informal resolution.
Our instincts are also backed up by our experience as hearing officers and adjudicators in matters involving allegations of assault and contested facts. In these matters, a formal process before a neutral hearing officer might serve the parties better than something less formal. In these adjudications, just as in civil trials, decision-makers may sometimes ponder whether a resolution might have been achieved without the costs and risks associated with a binary outcome. As adjudicators and mediators, we understand that matching the problem to the process is important and is not always easy.
It is also very important, in our view, that the ultimate decision to pursue an informal process over a formal one rest with the parties themselves. Notwithstanding the criticisms surrounding the idea of compulsory informal resolution, we believe that informal processes—such as mediation or facilitation—are most successful when undertaken voluntarily
The takeaway is that civil trials occur only when other methods have failed. Trials are expensive and risky—risky because control is ceded to an adjudicator. Many disputes in academia are similar enough to warrant the use of informal resolution; however, some circumstances may push those matters into more formal processes, which often serve no one optimally.
Here is an additional factor to consider when addressing the “whether” question: Because Title IX adjudication is, among other things, a learning opportunity for students, an administration’s decision to allow informal resolution can teach the participants important values about how to engage with conflict and other disputants in a productive manner, as well as how to design and construct safeguards for even the most difficult conversations. Successful resolutions may have the additional effect of demonstrating how to construct solutions in seemingly intractable situations. Allowing students to have an active role in dispute resolution can provide a valuable educational experience for everyone involved.
Assuming that informal resolution has merit from a student’s vantage point, what are the institutional benefits? Following the notion of students controlling and shaping their outcomes in organized, professionally administered Title IX mediations, these same students are most likely going to be satisfied with the outcome and the processes that led them there. Further, schools that empower their students to make these types of decisions will probably lower their risk of litigation following Title IX determinations.
Once you answer the “whether” question, you’ll need to know “how.” Based on our more than 40 years of experience resolving highly complex disputes of all types, we hope you’ll consider getting in touch with us. JAMS Solutions for Higher Education addresses the unique needs of higher education by providing services such as Title IX adjudications, appeals and informal resolution; faculty and administration dispute prevention and resolution; systemic investigations; and dispute resolution training.