Running head: MEDIATION IN TITLE IX 1

Mediation in Title IX:

A Viable Option?

Kaitlyn Vallance

Seattle University
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Introduction

Title IX of the Educational Amendments Act of 1972, more simply known as “Title IX,” is a federal

civil rights law which prohibits sex-based discrimination in any organizations, institutions, or activities

receiving federal funding (“Background,” 2018). While Title IX is frequently connected with investigating and

adjudicating sexual misconduct cases on college campuses, Title IX regulations have never explicitly discussed

sexual harassment and sexual assault. Rather than addressing sexual harassment and assault as a form of sexual

discrimination and formally regulating this misconduct under Title IX, the Department of Education has

traditionally provided only guidance documents to colleges and universities for handling sexual harassment and

assault in their Title IX processes (“Background,” 2018). This has resulted in an unpredictable system of Title

IX investigations, hearings and grievance procedures that vary between institutions and leave both complainants

and respondents exhausted from navigating their institution’s idiosyncratic Title IX process (“Background,”

2018; Gersen, J.S., 2019).

On November 16, 2018, the Department of Education (DOE), overseen by Secretary Betsy DeVos,

issued a notice of proposed rulemaking (NPRM) “regarding additional regulations implementing Title IX of the

Education Amendments of 1972” (“Title IX Campus Sexual Assault,” 2019). The DOE’s “proposed

regulations,” as they are colloquially known, are groundbreaking because these regulations represent the first

time the DOE has ever directly addressed sexual harassment and assault in Title IX and outlined how colleges

and universities should handle their investigation, adjudication and appeals processes. Although this historical

event seems positive given the inconsistency in how Title IX cases are handled across individual campuses,

there was an almost immediate backlash from survivors, advocates and Title IX professionals over several of

the newly proposed regulations.

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Of the many proposed regulations facing scrutiny from survivors, advocates and Title IX professionals,

the DOE guidelines permitting the use of informal resolutions, like mediation, in sexual misconduct case drew

particular ire. Interestingly, the DOE permitting the use of mediation in cases where both parties agree directly

contradicts previous guidance from the Office for Civil Rights (OCR). In their “Dear Colleague Letter” (2011),

the OCR strongly recommends against using informal resolution processes in cases of sexual assault, stating:

“​moreover, in cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary

basis.​” While the OCR claims mediation is inappropriate because of the lopsided power dynamic between the

complainant and respondent, the DOE seems to believe mediation provides even greater opportunities for

resolving student conflicts outside of the formal Title IX hearing process.

Rationale

Given the DOE’s proposed regulations contradict long-standing guidance from the OCR and the

recommendations of survivor advocate groups, I was interested in understanding how Title IX coordinators

interpret the potential benefits and challenges in using mediation as an informal resolution in sexual misconduct

cases. Title IX and student conduct are my two areas of professional interest and I would like to one day work

as a Title IX coordinator at any institution type. Since the federal government has a heavy hand in determining

college and university responsibilities under Title IX, I anticipate this will not be the only time the Department

of Education proposes regulations to Title IX that change how colleges and universities respond to and handle

cases of sexual harassment and assault.

Therefore, to best prepare myself for a potential future working in Title IX, I wanted to use this

professional development project as an opportunity to explore how Title IX coordinators adapt and implement

changing guidance and regulations from the DOE and the OCR. Additionally, I wanted to know their insight

into the benefits and challenges of introducing mediation as an informal, alternative dispute resolution for
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sexual misconduct cases, given I have previously facilitated informal mediations in my role at Cornish College

of the Arts and see the incredibly value of having that option available in other student conduct cases.

Methodology
In order to best understand how Title IX coordinators are reacting to mediation as an informal resolution

option in sexual misconduct cases, I saw it necessary that I directly interview current Title IX coordinators to

engage in a structured conversation. Ultimately, I was able to speak with three current Title IX coordinators:

Valery Richardson at University of Washington, Seattle; Tiffany Davis at Cornish College of the Arts; and

Brittany Henderson at Cornish College of the Arts.

One might question my decision to interview two Title IX coordinators at the same institution; however,

Tiffany Davis currently serves as Cornish’s incoming Title IX coordinator and has a background in civil rights

law; whereas Brittany Henderson is currently the outgoing Title IX coordinator and has a background in student

affairs. Given Tiffany and Brittany’s journeys to Title IX work and their education backgrounds before entering

the coordinator role were substantially different, I did not feel this redundancy in institution resulted in a

redundancy of information.

I conducted all three interviews within a single hour-long conversation. I provided interviewees with a

copy of my questions via email so they had the opportunity to prepare in advance. Before beginning each

interview, I asked the interview subjects if they would like to remain anonymous in my final project and all

three declined. Valery Richardson did request I mention that her views are not representative of the University

of Washington’s views on the proposed regulations. Neither Tiffany nor Brittany requested a similar disclaimed

within this project; however, my questions were centered around only personal beliefs and interpretations, so

their views should also not be seen as representative of Cornish College of the Arts.
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While I do not provide full interview transcripts from my conversations with Valery, Tiffany and

Brittany in this paper, my notes from these interviews can be made available upon request. What follows here

are the five interview questions I asked each interviewee:

1. What do you think is the impetus (philosophical, legal, financial, etc.) behind this change in
OCR guidance?
2. Who do you think benefits from mediation as a “new” option for resolving complaints?
3. Who do you think is harmed by mediation becoming a “new” option for resolving complaints?
4. Do you believe you have the knowledge and skills necessary for handling the mediation of a
sexual assault case? What additional skills/training/resources would you need to feel comfortable
mediating these cases, if any?
5. According to the proposed regulations and the guidance documents from OCR, schools will
determine whether mediation is appropriate for a particular complaint. In what situations can you
foresee mediation being appropriate? ​Can you draw on any previous examples from your
professional experience where mediation would have been a useful option to present to the
parties?
Findings
Despite the wide range in my interview subjects’ educations, experiences and institution types, I found

that Valery, Tiffany and Brittany largely gave similar responses to each of the questions I asked. For example,

in response to my first question, all three claimed the proposed regulations from the DOE were primarily a

reaction against what Trump’s administration sees as a complainant-favoring process. This interpretation aligns

with much of the political analysis I have read regarding the “reason” behind proposed regulations. In an article

for the New Yorker entitled “The Rights and Wrongs of Federal Guidelines on Sexual Assault,” law professor

Jeannie Suk Gersen echoes a claim Tiffany made in our interview concerning how the Trump administration’s

belief that the Title IX process is stacked against the respondent is not unfounded. Gersen (2019) writes:

Universities reacted with panicked overcompliance: in renewing their attention to the rights of alleged
victims of sexual assault, many began to disregard the rights of accused students. In recent years, it has
become commonplace to deny accused students access to the complaint, the evidence, the identities of
witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses. At
many schools, including Middlebury College and the University of Pennsylvania, investigators and
adjudicators have been trained to “start by believing” the complainant rather than to start from a position
of neutrality.
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However, Tiffany diverges from Gersen’s argument when specifically speaking about the guidelines allowing

mediation as an option for informal resolution in Title IX cases. While Tiffany does think the Title IX process

can be unfairly biased against the respondent, she does not think mediation will provide students a better option.

This is due to her opinion that the Trump administration’s DOE has permitted mediation as an informal

resolution process due to their flawed belief that sexual harassment and misconduct is the result of simple

misunderstandings that can be resolved through facilitated conversations. Therefore, while the DOE may be

permitting the use of mediation in Title IX processes, there does not seem to be a clear understanding from the

Trump administration or the DOE concerning the purpose and philosophy behind alternative dispute resolution

techniques, which could result in colleges and universities misapplying the concept and performing poor

medations.

In response to my second question about who they see as “benefitting” from mediation as an option in

the Title IX process, Valery, Tiffany and Brittany differed slightly in their perspectives. Valery reacted strongly

against the idea that anyone could benefit from this process and stated she would not be using mediation for any

sexual assault cases at the University of Washington and that they would continue to follow the OCR guidance

“from the Obama-era.” Upon further prompting from me, she did ultimately state she saw colleges and

universities benefitting the most from this process since it minimizes their legal responsibilities under Title IX.

Additionally, during our conversation about question #3, Valery does mention she thinks this process could

benefit a fully-informed complainant seeking a less emotionally and mentally taxing process than they would

experience in a full hearing.

Tiffany and Brittany both stated that, theoretically, everyone could benefit from this process if it is truly

what they want. According to Tiffany, both the respondent and complainant could directly benefit in situations

where involved parties prefer mediation for situations that don’t meet the threshold for a Title IX violation
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within an institution’s policy and could be considered low-level situations. Brittany, similarly to Valery, makes

an argument about the mediation process being less emotionally and mentally taxing than a Title IX hearing, but

expands the benefitted parties to include both the respondent and the complainant, like Tiffany.

Lastly, when asked who is “harmed” by a mediation option within the Title IX process, all three

coordinators discussed how complainants are harmed by this option because it presents what Brittany calls “a

false choice.” All three coordinators believe that presenting mediation as a “choice” to complainants when they

first come forward with a complaint could force them to feel compelled to pursue a mediation since it is the

“easier” option - though it may not always be the best one. Tiffany further argues that survivor advocates and

Title IX coordinators may also feel compelled to discuss mediation as an option, even in cases where they don’t

think it’s appropriate, because of institutional pressure. Since investigations, hearings and appeals processes are

huge resource drains for institutions, Tiffany can see an institution encouraging greater usage of mediation

within the Title IX process.

Tiffany also mentions that respondents can be harmed in a mediation process if it isn’t clearly written in

policy whether respondents are provided immunity from being found responsible for policy violations within a

mediation process. Therefore, it is crucial institutions clearly outline their mediation processes, in writing, to

both complainants and respondents prior to the parties agreeing to a mediation.

Valery adds additional perspective in this question by describing how the institution can be harmed by

mediation as an option. She states that students can lose trust in their institution if they feel administration is not

taking complaints of sexual misconduct seriously or if it is perceived as pressuring students (complainants or

respondents) into mediations where there is no punitive or educational outcome for responsible parties.

Implications
Should the proposed regulations be adopted and enforced by the Department of Education, student

affairs professionals, especially those working as or alongside Title IX coordinators, should be cautious about
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the unintended consequences of establishing a threshold for what constitutes a Title IX hearing process and

what can be considered for mediation. While none of the Title IX coordinators I interviewed explicitly stated

they would develop a prescriptive system for determining whether a case should be eligible for an informal

mediation process, both Valery and Tiffany at one point talked about “lower-level” or “less severe cases” of

sexual misconduct - thereby creating an unconscious binary of “low-level,” mediation-eligible cases and

“high-level,” mediation-ineligible cases. One can only assume “low-level” sexual misconduct may result from

cases of miscommunication, educational or developmental differences or accidental touching, while

“high-level” sexual misconduct would include a significant degree of intensity and/or intentionality on the part

of the respondent.

In her article, “The Domestication of Violence in Mediation,” Sara Cobb (1997) addresses the issues

with designating mediation as a site for resolving “low-level” disputes since doing so requires professionals to

weigh the intensity and intentionality of a respondent over the impact of the action on the complainant. Further,

Cobb (1997) argues:

[the] Cartesian distinctions between accidental and willed, mental and physical, delimit what can
be named as violence and make possible the distinction between “serious” and “minor” violence
[...]. From this perspective, these continuums of intentionality and of severity are central to the
accounting practices as personas address and redress violence.
According to Cobb, the act of designating certain types of violence as serious (warranting justice) and others as

minor (warranting mediation) naturally creates a continuum of violences where physical damage is seen as

more significant and damaging than situations of verbal harassment - though both can be equally harmful

depending on the complainant. Those working in Title IX must be mindful about how their determinations of

what cases are eligible for mediation shape their institution’s cultural understanding of the phenomenon of

violence. Because mediation is now in a grey-area where coordinators must effectively “trust their guts” about

what cases should be allowed to go to mediation, coordinators are in a more powerful position than ever to
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shape the institution’s outlook on “degrees” of violence and the appropriate remedies for these different

“violences.”

Recommendations

In order to provide sound recommendations to institutions should the proposed regulations be enforced,

I looked for themes in Valery, Tiffany and Brittany’s responses to my fourth interview question about the skills,

resources and trainings they would need to feel comfortable mediating Title IX cases.

All three Title IX coordinators stressed the importance of having dedicated mediators who are trained in

a particular style of mediation. For Valery, this mediator would need to be trained in trauma-informed

interviewing, similarly to the UW investigators. For Tiffany, any mediators would need to have existing

education and continuous training around the power dynamics pervasive in sexual misconduct cases. While

Brittany does not recommend any particular style or training like the other two coordinators, she does

emphasize that institution’s need to determine a single mediation style to train all their mediators - in Title IX

and student misconduct - and that is grounded in a shared college philosophy around justice. I would

recommend institutions that do not already have a philosophy and core values for their student conduct

processes create one for their conduct processes overall and that institutions with a foundational, guiding

philosophy in their student conduct practices examine that philosophy to ensure it integrates both Title IX and

informal resolutions, like mediation. In doing so, training existing staff to work as mediators or hiring new

mediator roles will not be as difficult since there are guiding principles for determining how mediation work

will be done.

Secondly, I would recommend every institution very clearly outline their policies and procedures around

Title IX mediations, should they differ from other student conduct mediations. According to Tiffany, these

policies and procedures should include detailed, step-by-step information about the mediation process from the
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initial report to potential outcomes; what findings may result from disclosures in a mediation; when and for

what reasons a mediation can be stopped and by whom; etc.

Interestingly, the Department of Education provides similar recommendations as Tiffany and I do when

it comes to creating a clear process. In the proposed regulations, the DOE requires institutions provide both

parties interested in mediation, among other details, “the circumstances under which it precludes the parties

from resuming a formal complaint arising from the same allegations” (“Notice of Proposed Rulemaking,”

2018). I would also strongly recommend institutions create policies for exiting a mediation and resuming the

formal complaint process - especially in light of the misinformation speak about mediation in the proposed

regulations.

Organizations like “Know Your IX” have, unfortunately, perpetuated false statements in their

educational documents about how mediation means you can never resume a formal hearing process (“9 Things

to Know, 2019). Not only would I recommend institutions create processes for students to exit mediation at

every step stage of the mediation prior to outcomes being agreed upon, but I would also recommend institutions

pay close attention to the educational materials they advertise, distribute or utilize within classrooms since

distrust in mediation processes that haven’t even been established yet threaten to paralyze a potentially

promising avenue for alternative dispute resolution in Title IX.

Conclusion

In conclusion, I am not certain whether mediation as an option for informal resolution within Title IX

cases is positive or negative. Much like the Title IX coordinators I interviewed, I see the opportunities

mediation affords all parties: a more expedient process that is less draining on a student’s emotions and on an

institution’s resources. However, I also am cognizant of the pitfalls of mediation in cases of sexual assault, even

with an experienced, well-trained mediator. While I do not personally know if I would be more or less likely to
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report as a student were mediation an available option, I do know that all three of the Title IX coordinators I

spoke to answered my fifth interview question affirmatively, meaning there have been cases in the past and

likely in the future where students either request an informal resolution when reporting or feel trapped within a

formal complaint process that they see as their only means for resolution. I personally do not believe it is a

misstep to provide students like those a greater number of options - as long as the mediation option is clearly

outlined in publicly available, written documentation and facilitated by a capable, certified mediator.
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References

American Council on Education. (2019, January 30). Title IX campus sexual assault: Resources on the

Department of Education's proposed regulations. Retrieved from https://www.acenet.edu/news-room

/Pages/Department-of-Education-Draft-Rule-on-Title-IX-Resources.aspx

Cobb, S. (1997). The domestication of violence in mediation. ​Law and Society Review​, ​31​(3), pp. 397 - 440.

Department of Education. Archived: dear colleague letter. (2011, April 4). Retrieved from ​https://www2.ed.gov

/about/offices/list/ocr/letters/colleague-201104.html

Department of Education. Background & summary of the Education Department’s proposed Title IX regulation.

Retrieved from https://www2.ed.gov/about/offices/list/ocr/ docs/background-summary-proposed- title

-ix-regulation.pdf

Department of Education. Notice of proposed rulemaking. (2018, November 16). Retrieved from

https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf

Gersen, J.S. (2019, February 1). The rights and wrongs of federal guidelines on sexual assault. ​The New Yorker.

Retrieved from https://www.newyorker.com/news/our-columnists/assessing-betsy-devos-proposed

-rules-on-title-ix-and-sexual-assault

Know Your IX. (2018, November 29). 9 things to know about Betsy DeVos’ proposed Title IX

Rule. Retrieved from https://actionnetwork.org/user_files/user_files/000/028/107/original

/Two_pager_on_proposed_rule.pdf

Watkins, G. (2017, October 2). Sexual assault survivor to Betsy DeVos: Mediation is not a viable resolution.

Retrieved from http://time.com/4957837/campus-sexual-assault-mediation/