Title IX Training

Informal Resolutions

  1. When can an IHE use an informal resolution process to resolve Title IX complaints?

    1. An IHE can use informal resolution when all of the following are true
      1. A formal complaint has already been filed. § 106.45(b)(9).
      2. The complaint does not allege that an employee sexually harassed a student. Id. (§ 106.45(b)(9)(iii)).
      3. Both parties provide voluntary, written consent to an informal resolution. Id. (§ 106.45(b)(9)(ii)).
      4. The IHE gives the parties a written notice disclosing the allegations and the requirements of the informal process. Id. (§ 106.45(b)(9)(i)).
  2. What does an informal resolution process entail?

    1. Informal resolutions can include mediation, arbitration, restorative justice, or other strategies. (p. 30401). The regulations intentionally do not define “informal resolution” in order to provide IHEs with flexibility. See id. Informal resolutions do not require live hearings or cross-examinations, which may make them desirable when there are no factual disputes between the parties about the underlying incident(s). (p. 30329).
    2. Advisor participation: The regulations do not require IHEs to allow the parties to confer with an advisor before entering an informal resolution process, or require IHEs to provide the parties with advisors before entering an informal resolution process. (p. 30402).
  3. What other restrictions are there on informal resolution?

    1. An IHE may not condition enrollment, employment, or any other right of students or employees on agreeing to an informal process. Id. (§ 106.45(b)(9)). At any time prior to agreeing to a resolution, either party has the right to withdraw from the informal process and resume the formal grievance process with no consequences. (p. 30575; §106.45(b)(9)(i)). 31
  4. Who can facilitate an informal process?

    1. The regulations do not require IHEs to have more than one person facilitating an informal process. Id. at 30372. These facilitators can be third party providers, and do not have to sign MOUs with the IHE. Id. at 30405. All facilitators are subject to the same training and impartiality requirements as are an IHE’s Title IX Coordinators, investigators, and other decision-makers. (p. 30575; §106.45(b)(1)(iii)).
  5. What sanctions can an IHE impose after an informal process?

    1. An IHE can impose any disciplinary consequence after an informal process that they could also impose in a formal process, including expulsion. See id. at 30405. However, the respondent may withdraw from the informal process at any point, and can thus choose to begin or resume a formal process instead of agreeing to a particular sanction. (p. 30407).
  6. Can facilitators of informal processes serve as witnesses in subsequent formal grievance processes?

    1. Yes, as long as this possibility is disclosed to the parties in the written notice prior to the informal process beginning. (p. 30401).
    2. However, IHEs may also want to consider Colorado state law concerning the confidentiality of mediation communications. § 13–22–307, C.R.S. protects certain mediation communications as confidential, unless specific exceptions are met. One exception is when all parties and the mediator consent in writing to a subsequent disclosure. Id.