1. Policies and Procedures
  2. Alternative Resolution for Alleged Violations of Gender-Based and Sexual Misconduct

Alternative Resolution for Alleged Violations of Gender-Based and Sexual Misconduct

Statement

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. 

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:

  1. When the parties agree to resolve the matter through an Alternative Resolution mechanism including mediation or restorative practices; 
  2. When the Respondent accepts responsibility for violating policy, and desires to accept a sanction and end the resolution process; or
  3. When the Title IX Coordinator can resolve the matter informally by providing supportive measures to remedy the situation. 

To initiate Alternative Resolution, a Complainant needs to submit a formal complaint, in writing to the Title IX Coordinator. If a Respondent wishes to initiate Informal Resolution, they should contact the Title IX Coordinator to so indicate. 

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.  

Process

Upon receipt of a complaint or notice to the Title IX Coordinator of an alleged violation of the Gender-Based and Sexual Misconduct Policy (the Policy), the College initiates a prompt initial assessment to determine the next steps the College needs to take. The College will initiate at least one of three responses: 

  1. Offering supportive measures because the Complainant does not want to proceed formally; and/or
  2. An Alternative Resolution; and/or 
  3. A Formal Grievance Process including an investigation and a hearing. 

Initial Assessment

Following receipt of notice or a complaint of an alleged violation of this Policy, the Title IX Coordinator engages in an initial assessment. The steps in an initial assessment can include:

  • If notice is given, the Title IX Coordinator seeks to determine if the person impacted wishes to make a formal complaint, and will assist them to do so, if desired. 
    • If they do not wish to do so, the Title IX Coordinator determines whether to initiate a complaint because a violence risk assessment indicates a compelling threat to health and/or safety.
  • If a formal complaint is received, the Title IX Coordinator assesses its sufficiency and works with the Complainant to make sure it is correctly completed.
  • The Title IX Coordinator reaches out to the Complainant to offer supportive measures. 
  • The Title IX Coordinator works with the Complainant to ensure they are aware of the right to have an Advisor.
  • The Title IX Coordinator works with the Complainant to determine whether the Complainant prefers a supportive and remedial response, an Alternative Resolution option, or a formal investigation and grievance process. 
    • If a supportive and remedial response is preferred, the Title IX Coordinator works with the Complainant to identify their wishes and then seeks to facilitate implementation. If no Formal Grievance Process is initiated, though the Complainant can elect to initiate one later, if desired. 
    • If an Alternative Resolution option is preferred, the Title IX Coordinator assesses whether the complaint is suitable for Alternative Resolution, and may seek to determine if the Respondent is also willing to engage in Alternative Resolution. 
    • If a Formal Grievance Process is preferred, the Title IX Coordinator determines if the misconduct alleged falls within the scope of Title IX Misconduct or Gender-Based Sexual Misconduct.
      • If necessary, the Title IX Coordinator may dismiss elements of the complaint as required and outlined further in section “b” below. 

Violence Risk Assessment 

In many cases, the Title IX Coordinator may determine that a Violence Risk Assessment (VRA) should be conducted by a threat assessment team as part of the initial assessment. A VRA can aid in critical and/or required determinations, including:

  • Emergency removal of a Respondent on the basis of immediate threat to physical health/safety;
  • Whether the Title IX Coordinator should pursue/sign a formal complaint absent a willing/able Complainant;
  • Whether to put the investigation on the footing of incident and/or pattern and/or climate;
  • To help identify potential predatory conduct;
  • To help assess/identify grooming behaviors;
  • Whether it is reasonable to try to resolve a complaint through Alternative Resolution, and what modality may be most successful;
  • Whether to permit a voluntary withdrawal by the Respondent;
  • Whether to impose transcript notation or communicate with a transfer Recipient about a Respondent;
  • Assessment of appropriate sanctions/remedies (to be applied post-hearing); and/or
  • Whether a Clery Act Timely Warning or Trespass Order needed.

Threat assessment is the process of evaluating the actionability of violence by an individual against another person or group following the issuance of a direct or conditional threat. A VRA is a broader term used to assess any potential violence or danger, regardless of the presence of a vague, conditional, or direct threat. 

VRAs require specific training and are typically conducted by psychologists, clinical counselors, social workers, case managers, law enforcement officers, student conduct officers, or other Care and Support Team members. A VRA authorized by the Title IX Coordinator should occur in collaboration with the Care and Support Team. Where a VRA is required by the Title IX Coordinator, a Respondent refusing to cooperate may result in a charge of failure to comply within the appropriate student or employee conduct process.

A VRA is not an evaluation for an involuntary behavioral health hospitalization (Section XII in Massachusetts), nor is it a psychological or mental health assessment. A VRA assesses the risk of actionable violence, often with a focus on targeted/predatory escalations, and is supported by research from the fields of law enforcement, criminology, human resources, and psychology. 

Other Information about Alternative Resolutions 

A party participating in Alternative Resolution can stop the process at any time and begin or resume the Formal Grievance Process. 

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. 

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 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 ultimate determination of whether Alternative Resolution is available or successful is to be made by the Title IX Coordinator. 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. 

Negotiated Resolution

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.

Right to an Advisor

In an Alternative Resolution process parties may each have an Advisor of their choice present with them for all meetings, if they so choose. The parties may select whoever they wish to serve as their Advisor as long as the Advisor is eligible and available. 

Who Can Serve as an Advisor

The Advisor may be a friend, mentor, family member, attorney, or any other individual a party chooses to advise, support, and/or consult with them throughout the resolution process. The parties may choose Advisors from inside or outside of the College community. 

The Title IX Coordinator can also assign a trained Advisor for any party if the party so chooses. If the parties choose an Advisor from the pool available from the College, the Advisor will be trained by the College and be familiar with the College’s resolution process. 

If the parties choose an Advisor from outside the pool of those identified by the College, the Advisor may not have been trained by the College and may not be familiar with the College’s policies and procedures. Parties also have the right to choose not to have an Advisor. 

Advisor’s Role

The parties may be accompanied by their Advisor in all meetings and interviews at which the party is entitled to be present, including intake and interviews. Advisors should help the parties prepare for each meeting and are expected to advise ethically, with integrity, and in good faith. 

The College cannot guarantee equal Advisory rights, meaning that if one party selects an Advisor who is an attorney, but the other party does not or cannot afford an attorney, the College is not obligated or permitted to provide an attorney. 

Advisor Violations of College Policy

All Advisors are subject to the same College policies and procedures, whether they are attorneys or not. Advisors are expected to advise their advisees without disrupting proceedings. The parties are expected to ask and respond to questions on their own behalf throughout the investigation phase of the resolution process. Although the Advisor generally may not speak on behalf of their advisee, the Advisor may consult with their advisee, either privately as needed, or by conferring or passing notes during any resolution process meeting or interview. For longer or more involved discussions, the parties and their Advisors should ask for breaks to allow for private consultation.

Any Advisor who oversteps their role as defined by this policy will be warned only once. If the Advisor continues to disrupt or otherwise fails to respect the limits of the Advisor role, the meeting will be ended, or other appropriate measures implemented. Subsequently, the Title IX Coordinator will determine how to address the Advisor’s non-compliance and future role.

Sharing Information with the Advisor

The College expects that the parties may wish to have the College share documentation and evidence related to the allegations with their Advisors. Parties may share this information directly with their Advisor or other individuals if they wish. Doing so may help the parties participate more meaningfully in the resolution process. 

The College also provides a consent form that authorizes the College to share such information directly with their Advisor. The parties must either complete and submit this form to the Title IX Coordinator or provide similar documentation demonstrating consent to a release of information to the Advisor before the College is able to share records with an Advisor. 

If a party requests that all communication be made through their attorney Advisor, the College will comply with that request.  

Privacy of Records Shared with Advisor

Advisors are expected to maintain the privacy of the records shared with them. These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by the College. The College may seek to restrict the role of any Advisor who does not respect the sensitive nature of the process or who fails to abide by the College’s privacy expectations.

Expectations of an Advisor

The College generally expects an Advisor to adjust their schedule to allow them to attend meetings when planned, but may change scheduled meetings to accommodate an Advisor’s inability to attend, if doing so does not cause an unreasonable delay. The College may also make reasonable provisions to allow an Advisor who cannot attend in person to attend a meeting by telephone, video conferencing, or other similar technologies as may be convenient and available. 

Expectations of the Parties with Respect to Advisors

A party may elect to change Advisors during the process and is not obligated to use the same Advisor throughout. The parties are expected to provide timely notice to the Title IX Coordinator if they change Advisors at any time. It is assumed that if a party changes Advisors, consent to share information with the previous Advisor is terminated, and a release for the new Advisor must be secured. 

Assistance in Securing an Advisor

For representation, Respondents may wish to contact organizations such as:

Complainants may wish to contact organizations such as: