Informal Resolution Policy
Procedures for Entering and Exiting Informal Resolution Process
Parties who do not wish to proceed with an investigation and live hearing, and instead seek Barnard’s assistance to resolve allegations of Title IX-covered misconduct, may elect to enter the informal resolution process. Generally speaking, these resolution options are less time intensive than an investigation and live hearing, while still affording students an opportunity to actively participate in a process led by Barnard for resolution of their complaints.
The Parties may elect to enter Barnard’s informal resolution process at any time after the filing of the Formal Complaint through an informed written consent. This informed written consent will include all terms of the elected informal process, including a statement that any agreement reached through the process is binding on the Parties.
No Party may be required to participate in informal resolution, and Barnard may never condition enrollment, employment, or enjoyment of any other right or privilege upon agreeing to informal resolution.
The Parties may elect to leave the informal resolution process at any point until the informal resolution process is concluded. If a Party elects to leave the informal resolution process, the formal resolution process recommences. In participating in the informal resolution process, the Parties understand that the timeframes governing the formal process temporarily cease, and only recommence upon reentry into the formal process.
Even where the Parties agree to submit a matter to informal resolution, the Director of Nondiscrimination and Title IX or other designated official may approve the decision to move the matter to the informal resolution process and may determine that informal resolution is not appropriate under the circumstances.
Factors that the Director of Nondiscrimination and Title IX or other designated official may weigh in considering the appropriateness of the informal resolution process include, but are not limited to, the gravity of the allegations, whether there is an ongoing threat of harm or safety to the campus, whether the respondent is a repeat offender, and whether the Parties are participating in good faith. This determination is not subject to appeal.
Informal resolution processes may never be applied where the allegations include Sexual Assault: penetration or the equivalent.
Informal resolution is only permitted to address allegations of student-on-student sexual harassment, and is never allowed as an option to resolve allegations that an employee sexually harassed a student. See, 85 Fed. Reg. 30026, 30054 (May 19, 2020).
At any time after the commencement of the informal resolution process, the Director of Nondiscrimination and Title IX or other designated official may determine that the informal resolution process is not an appropriate method for resolving the matter, and may require that the matter be resolved through the formal process. This determination is not subject to appeal.
Informal resolution processes are managed by facilitators, who may not have a conflict of interest or bias in favor of or against complainants or respondents generally or regarding the specific Parties in the matter. The Director of Nondiscrimination and Title IX may serve as the facilitator, subject to these restrictions.
All facilitators must have training in the definition of sexual harassment under 34 C.F.R. § 106.30(a), the scope of the institution’s education program or activity, how to conduct informal resolution processes, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, or bias.
In entering the informal resolution process, the Parties agree that any testimony and evidence (including admissions of responsibility) they share or receive during the informal resolution process concerning the allegations of the Formal Complaint is confidential. No evidence concerning the allegations obtained within the informal resolution process may be disseminated to any person, provided that any Party to the informal resolution process may generally discuss the allegations under investigation with a parent, friend, advisor, or other source of emotional support, or with an advocacy organization. As a condition of entering the informal resolution process, any evidence shared or received during the informal resolution process may not be used in any subsequent formal resolution process or institutional appeal.
Barnard offers the following informal resolution procedures for addressing complaints of Discrimination and Harassment or Formal Complaints of sexual harassment.
In some instances a Complainant may desire supportive measures as the sole resolution. This may or may not include restrictions related to the access or instructions regarding when parties find themselves in the same campus location.
Should the Parties mutually determine to enter the informal resolution process, and the respondent elects to accept responsibility for the allegations of the Formal Complaint at any point during the informal resolution process, the institution may administratively resolve the Formal Complaint.
Where the respondent admits responsibility, the Parties will receive simultaneous written notification of the acceptance of responsibility, and the decision-maker will convene to determine the respondent’s sanction and other remedies, as appropriate and consistent with institutional policy. The Parties will be given an opportunity to be heard at the sanctions hearing, including but not limited to the submission of impact statements, and the Parties may be accompanied by their Advisor, but questioning of Parties or witnesses will not be permitted. The Parties will receive simultaneous written notification of the decision regarding sanctions and remedies, which may be appealed according to the process described below.
The purpose of alternative resolution is for the parties who are in conflict to identify the implications of an individual’s actions and, with the assistance of a trained facilitator, identify points of agreement and appropriate remedies to address them. Either party can request alternative resolution to seek resolution; alternative resolution will be used only with the consent of both parties, who will be asked not to contact one another during the process. The Office of Nondiscrimination and Title IX will also review any request for mediation, and may decline to mediate based on the facts and circumstances of the particular case. Either party has the right to terminate the alternative resolution process and choose or resume another option for resolution at any time. The alternative resolution process will typically commence within 10 days after the Office of Nondiscrimination and Title IX receives consent to mediate from both parties, and will continue until concluded or terminated by either party or the Office of Nondiscrimination and Title IX.
During alternative resolution, any potential investigation will halt, and calculations for time frames will be stayed. If the mediation results in a resolution, the disciplinary process will be concluded and the matter will be closed. If a resolution cannot be reached, the matter will be referred to the Director of Nondiscrimination and Title IX to re-evaluate other options for resolution, including investigation. During facilitated resolution or mediation, a facilitator will guide a discussion between the parties. In circumstances where the parties do not wish to meet face to face, either party can request “caucus” mediation, and the facilitator will conduct separate meetings. Whether or not the parties agree to meet face to face, each party will be permitted to bring an advisor of their choice to any meetings who may be, but is not required to be, an attorney. At the conclusion of the alternative resolution process, the facilitator will memorialize the agreement that was reached between the parties. The Office of Nondiscrimination and Title IX will monitor adherence to the proposed solution and close the matter when compliance is satisfactory.