Appendix A: An ATIXA Framework for Informal Resolution (IR)

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ATIXA has framed a process for IR that includes three options: 

  1. A response based on supportive measures 
  2. A response based on a Respondent accepting responsibility 
  3. A response based on Alternative Resolution, which could include various approaches and/or facilitation of dialogue

Alternative Resolution approaches such as mediation, restorative practices, and transformative justice are likely to be used more and more often by postsecondary institutions. ATIXA does not endorse these approaches as better or worse than other formal or informal approaches. 

ATIXA believes that if they are to be used in and are effective for sex offenses, they need to be carefully and thoughtfully designed and executed and be facilitated by well-trained personnel who take the necessary time to prepare and lay a foundation for success. Although no approach is a panacea, the framework below can help to lay that foundation, regardless of the approach(es) used.

Here are the principles to be considered in supporting various approaches to Informal Resolution: 

  • IR can be applied in any sex/gender-based interpersonal conflict but may not be appropriate or advisable in cases involving violent incidents (sexual violence, stalking, domestic and dating violence, severe sexual harassment, sexual exploitation, etc.). 
  • Situations involving dangerous patterns or significant ongoing threat to the community should not be resolved by IR. 
  • The determination of whether to permit an IR-based resolution is entirely at the discretion of the Title IX Coordinator (TIXC) and in line with the requirements for IR laid out in the Title IX regulations. 
  • Any party can end IR early-, mid-, or late-process for any reason or no reason. 
  • IR can be attempted before and in lieu of formal resolution as a diversionary resolution (although a Formal Complaint must be filed if you are within 34 CFR § 106.30, per OCR). 
  • Alternative approaches can inform formal resolution, as in a formal resolution model infused with restorative practices. 
  • IR-based processes 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 to IR must be facilitated by the School 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, otherwise the Informal Resolution process may be deemed to have failed. 
  • Technology-facilitated IR can be made available, should the parties not be able or willing to meet in person. 
  • If IR fails, a formal resolution can take place thereafter. Evidence elicited within the “safe space” of the IR facilitation could be later admissible in the formal resolution unless all parties determine it should not be. This will be clearly spelled out as a term of the decision to engage in the IR process. 
  • With cases involving violence, the preferred alternative approach typically involves a minimal number of essential parties and is not a restorative circle approach with many constituents, in order to ensure confidentiality. 
  • Some approaches require a reasonable gesture toward accountability (this could be more than an acknowledgment 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 TIXC before determining that an incident is amenable/appropriate for resolution by IR. 
  • IR can result in an accord or agreement between the parties (Complainant, Respondent, the School), which is summarized in writing by and enforced by the School. This can be a primary goal of the process. 
  • IR can result in the voluntary imposition of safety measures, remedies, and/or agreed-upon resolutions by the parties that are enforceable by the School. These can be part of the agreement. 
  • As a secondary goal, IR 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 School as part of the agreement, as may be terms of mutual release, non- disparagement, and/or non-disclosure. 
  • Although a non-disclosure agreement (NDA) could result from IR, it would have to be mutually agreed- upon by the parties in an environment of non-coercion verified by the TIXC. 

Institutions must develop clear rules for managing/facilitating the conference/meeting/dialogue of Alternative Resolution approaches to ensure they are civil, age-appropriate, culturally competent, reflective of power imbalances, and maximize the potential for the Grievance Process to result in catharsis, restoration, remedy, etc., for the Complainant(s).