In prior Obama-era guidance from the DOE Office for Civil Rights, the resolution of sexual misconduct or assault allegations by mediation was not encouraged and, in some situations, was prohibited. This position existed despite that when such allegations resulted in Jane and John Doe lawsuits, many were eventually settled through mediation.
However, in September of 2017, after the DOE withdrew Obama-era guidance documents, the Office for Civil Rights issued interim Questions and Answers on Schools Responsibility to Address Sexual Misconduct. This interim guidance document specifically provided:
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.
Based on this new interim guidance and under the appropriate circumstances and voluntary agreement, there are a variety of methods a school could initiate to provide informal resolution. For example, a school may have an internal ombudsperson, provide an outside private mediator or use an agency such as The American Arbitration Association. Through some form of mediation, the parties may agree to similar remedies that occur in the formal hearing process or litigation, or fashion remedies unique to the parties’ situation. These remedies could include counseling, no contact agreements, restrictions on contact by parties, modification of work or class schedules, campus escort services, changes in work or housing locations, leaves of absence, voluntary withdrawal from school, increased security and monitoring of certain areas of campus, forms of affirmative actions by administration, school organizations, or a party, additional training or communication to deal with the issues involved, possible monetary relief and other accommodations that meet the interests of the parties.
As a lawyer representing schools in Title IX compliance and Title IX claims and serving as a mediator handling sexual misconduct claims, it is a viable approach to the resolution of such allegations. By exploring interests and developing creative methods for resolution, positive results may be available for students versus the unsatisfactory win-lose process that has been in place with the previous Title IX adjudication process. This is borne out by the number of Jane and John Doe cases where both the accusers and accused are unhappy with the results of the schools’ ultimate decision.