Alternative Resolution, also described as Informal Resolution, is an umbrella term that refers to approaches such as mediation, restorative practices, negotiated terms or agreements and other methods outside of the Formal Grievance Procedures (both “A” and “B”).
The use of Alternative Resolution encourages participants to cooperate and have open and honest dialogue, focus on common interests, and use creative problem-solving methods to arrive at their own resolutions.
Alternative Resolution can include three different approaches:
- When the parties agree to resolve the matter through an Alternative Resolution mechanism including mediation or restorative practices;
- When the Respondent accepts responsibility for violating policy, and desires to accept a sanction and end the resolution process; or
- When the Title IX Coordinator can resolve the matter informally by providing supportive measures to remedy the situation.
Process and Additional Information about Alternative Resolutions
To initiate Alternative Resolution, a Complainant must submit a formal complaint as defined above, in writing to the Title IX Coordinator. If a Respondent wishes to initiate Alternative Resolution, they should contact the Title IX Coordinator. The parties may agree, as a condition of engaging in Informal Resolution, that statements made, or evidence shared, during the Informal Resolution process will not be considered in the Formal Grievance Process unless all parties consent.
Prior to implementing Alternative Resolution, the College will provide the parties with written notice of the reported misconduct and any sanctions or measures that may result from participating in such a process, including information regarding any records that will be maintained or shared by the College.
It is not necessary to pursue Alternative Resolution first in order to pursue the applicable Formal Grievance Process, and any party participating in Alternative Resolution can stop the process at any time and begin or resume the applicable Formal Grievance Process. The Title IX Coordinator has discretion to determine if an investigation will be paused during Alternative Resolution, or if it will be limited, or will continue during the Informal Resolution process.
Alternative Resolution is an informal process, including mediation or restorative practices, etc., by which a mutually agreed upon resolution of an allegation is reached. All parties must consent to the use of Alternative Resolution. The College will obtain voluntary, written confirmation that all parties wish to resolve the matter through Alternative Resolution before proceeding and will not pressure the parties to participate.
The ultimate determination of whether Alternative Resolution is available or successful is to be made by the Title IX Coordinator. The Title IX Coordinator may look to the following factors to assess whether Alternative Resolution is appropriate, or which form of Alternative Resolution may be most successful for the parties:
- The parties’ amenability to Alternative Resolution;
- Likelihood of potential resolution, taking into account any power dynamics between the parties;
- The parties’ motivation to participate;
- Civility of the parties;
- Cleared violence risk assessment/ongoing risk analysis;
- Disciplinary history;
- Whether an emergency removal is needed;
- Skill of the Alternative Resolution facilitator with this type of complaint;
- Complaint complexity;
- Emotional investment/intelligence of the parties;
- Rationality of the parties;
- Goals of the parties;
- Adequate resources to invest in Alternative Resolution (time, staff, etc.)
The Title IX Coordinator maintains records of any resolution that is reached, and failure to abide by the resolution agreement may result in appropriate responsive/disciplinary actions. Results of complaints resolved by Alternative Resolution are not appealable.
Respondent Accepts Responsibility for Alleged Violations
The Respondent may accept responsibility for all or part of the alleged policy violations at any point during the resolution process. If the Respondent indicates an intent to accept responsibility for all of the alleged misconduct, the Title IX Coordinator will determine whether Alternative Resolution can be used according to the criteria in that section above.
If Alternative Resolution is applicable, the Title IX Coordinator will determine whether all parties and the College are able to agree on responsibility, sanctions, and/or remedies. If so, the Title IX Coordinator implements the accepted finding that the Respondent is in violation of Mount Holyoke College policy and implements agreed-upon sanctions and/or remedies, in coordination with other appropriate administrator(s), as necessary.
This result is not subject to appeal once all parties indicate their written assent to all agreed upon terms of resolution. When the parties cannot agree on all terms of resolution, the case can move to a hearing panel to determine sanctions.
When a resolution is accomplished, the appropriate sanction or responsive actions are promptly implemented in order to effectively stop the harassment or discrimination, prevent its recurrence, and remedy the effects of the discriminatory conduct, both on the Complainant and the community.
The Title IX Coordinator, with the consent of the parties, may negotiate and implement an agreement to resolve the allegations that satisfies all parties and the College. Negotiated Resolutions are not appealable.
Alternative Resolution can be attempted before and in lieu of formal resolution as a diversion-based resolution.
Alternative Resolution could be deployed after formal resolution, as an adjunct healing/catharsis opportunity (that could potentially mitigate sanctions or be a form of sanction).
Alternative Resolution approaches must be facilitated by the College or a third-party. There may be value in creating clearly agreed-upon ground rules, which the parties must sign in advance and agree to abide by.
Technology-facilitated Alternative Resolution can be made available, should the parties not be able or willing to meet in person.
If Alternative Resolution fails, a formal resolution can take place thereafter. No evidence elicited within the “safe space” of the Alternative Resolution facilitation is later admissible in the formal grievance unless all parties consent.
With cases involving violence, the preferred alternative approach typically involves a minimal number of essential parties and is not a wide restorative circle approach in order to ensure confidentiality and safety.
Some approaches require a reasonable gesture toward accountability (this could be more than an acknowledgement of harm) and some acceptance, or at least recognition, by the Respondent that catharsis is of value and likely the primary goal of the Complainant. A full admission by the Respondent is not a prerequisite. This willingness needs to be vetted carefully in advance by the Title IX Coordinator before determining that an incident is amenable/appropriate for resolution by Alternative Resolution.
Alternative Resolution can result in an agreement between the parties (Complainant, Respondent, Mount Holyoke) which is summarized in writing by and enforced by the College. This can be a primary goal of the process.
Alternative Resolution can result in the voluntary imposition of safety measures, remedies, and/or agreed-upon resolutions by the parties, that are enforceable by the College. These can be part of the agreement.
As a secondary goal, Alternative Resolution can result in the voluntary acceptance of “sanctions,” meaning that a Respondent could agree to withdraw, self-suspend (by taking a leave of absence), or undertake other restrictions/transfers/online course options that would help to ensure the safety/educational access of the Complainant, in lieu of formal sanctions that would create a formal record for the Respondent. These are enforceable by the College as part of the agreement, as may be terms of mutual release, non-disparagement, and/or non-disclosure.
While a non-disclosure agreement (NDA) could result from Alternative Resolution, it would have to be mutually agreed-upon by the parties in an environment of non-coercion verified by the Title IX Coordinator.