[Podcast] JAMS Solutions for Higher Education: Examining Informal Resolution of Title IX Cases

In this podcast, JAMS neutral, Hon. Jane Cutler Greenspan (Ret.) and Richard Birke, Vice President and the Executive Director of the JAMS Institute, discuss how the experience of JAMS neutrals and their commitment to Title IX can serve as an asset for higher education institutions, particularly in regards to informal resolution.

Justice Cutler Greenspan and Mr. Birke lay the groundwork for understanding how informal resolution in the Title IX context may take place on university campuses and what considerations are key for ensuring a safe and positive outcome for involved students. They explore how an informal agreement may take shape, in what situations informal resolution may be an appropriate option and what hurdles may emerge. The pair also highlights the role that informal resolution may play in restorative justice for students, reducing emotional strain and helping them move forward from the incident in their personal and professional lives.  

Moderator: [00:00:00] Welcome to this JAMS podcast. In this episode, we're going to hear about Title IX adjudication and how JAMS Solutions for Higher Education can help. With us are Richard Birke, Executive Director of the JAMS Institute and a Vice President of JAMS and Justice Jane Cutler Greenspan, a JAMS neutral, a former justice of the Supreme Court of Pennsylvania, and an advisor to the American Law Institute's project on campus sexual assault.

So thank you both for being with us. Rich, can you get us started by telling us a little bit about JAMS Solutions and how it assists institutions of higher education?

Richard Birke: [00:00:37] Yes, thank you. First, people should know that we are large enough and diverse enough in our capabilities to meet the needs of a wide variety of institutions.

Myself, I was a 25-year veteran of academia. I was a tenured professor for two and a half decades, so I understand a little bit about what goes on a campus and there's all kinds of issues, everything from human resources to intellectual property, to personal injury, to construction defect and, of course, including Title IX and disputes between faculty members or among faculty members regarding things like tenure and promotion and employment law. So, we bring to the table more capabilities than really any other institution of our kind, including dispute systems and design panels, if you need multiple people to work on, you know, a stream of adjudication.

We offer training. We do arbitration, mediation, quality assurance and a wide variety of every kind of program. Of course, because it's our aspiration to be able to tackle any matter that comes our way, our panelists, so the 430 panelists who comprise our team of arbitrators and mediators that we call neutrals.

They hail from every substantive area and every part of the country, so I think JAMS has an enormous amount to offer higher education. In addition, we've really taken very seriously our commitment to Title IX and have a large well-developed training regime and panel of experienced Title IX adjudicators and folks who can handle informal resolution as well.

Moderator: [00:02:39] Justice Greenspan, can you tell us a little bit about informal resolution in the Title IX context?

Justice Greenspan: [00:02:44] Yes, of course. Informal resolution, of course, involves, much like mediation, the individuals who are in a dispute resolving their problem together in collaboration, essentially. So, it's much like a settlement conference that might see in normal litigation, although it's the individuals that are involved, the accused, and the accuser who work together to come to a resolution.

But you have to understand that when there is an accusation made, the school has a complaint that comes to them and then a process begins. Typically, an investigation process, which can either lead to informal resolution or a formal resolution, which involves a hearing, which is basically adjudicated by a neutral party between the two individuals that are in the dispute.

Moderator: [00:03:56] Okay. And who decides whether to resolve a case by informal resolution?

Justice Greenspan: [00:04:00] Informal resolution requires the agreement of both individuals. If one does not wish to engage in informal resolution, then under the new regulations of Title IX, the informal resolution cannot occur. And so, it will go to a formal resolution or a hearing.

The school can facilitate an informal resolution, but it is up to the individuals who are involved to decide whether they can together resolve the issue between them. Some schools do not permit informal resolution where the accusation is, for example, a sexual assault. So, it may depend on how serious the accusation is as to whether informal resolution can occur.

There are also problems with whether the jurisdiction is within the new Title IX regulations, which are very narrow with regard to the students that are involved, whether the activity, whatever it is, the incident occurred on campus, whether it involved an educational activity of the school. But, for example, if it involved two students who are off campus in an apartment, even though both students may be enrolled, that would not come within the jurisdiction of the new Title IX regulations.

So interestingly, what schools have done is had two processes. One that is within the regulations of Title IX., and then in order to protect the safety of all their students, they have a process for those cases that would involve a student where it may not come within the jurisdiction of the new regulations of Title IX, but it's still involves a student who is accused and may be in a position that might make other students unsafe. By and large, all the schools have policies for informal resolution, for formal resolution, for policies that come within the jurisdiction of the new regulations of Title IX, and policies that might involve activity or incidents that are outside the jurisdiction of the new regulations.

Moderator: [00:06:41] Okay. And about informal resolution, what does an informal resolution agreement look like?

Justice Greenspan: [00:06:46] The agreement can take multiple forms, but importantly, you have the accused and the accuser deciding on how to go forward, what the resolution will be in order to go forward. That can take a form of one student agreeing to a suspension for a number of semesters until the other student is able to finish school or it may be just simply that there'll be no contact. It may be that one person is moved from one dormitory to another. It also may involve changing classes in some way, so that they're not in the same class. All sorts of ways. Usually, it will also involve a requirement of some kind that the accused engaged in some kind of learning experience with regard to what they've done and to be able to go forward and have learned from the experience so that they do not repeat it.

Moderator: [00:07:55] Now, Rich, I'll turn to you. Are there situations in which informal resolution may be unavailable?

Richard Birke: [00:08:01] Yes, there are. As Justice Greenspan just mentioned, a school policy might screen out certain kinds of matters that are potentially based on criminal liability. If there's a lack of consent from one of the two parties to the process, informal resolution is unavailable. When we use the term informal resolution, we are borrowing from the new Title IX regulations. So, as Justice Greenspan mentioned, there are jurisdictional requirements to be in the Title IX universe, but not all Title IX like problems will fit into that narrow jurisdiction.

So as was mentioned, if something happens between two students off campus, a university might have a process that could include a mediative component, but we wouldn't call it necessarily informal resolution because technically that is a term of art that has been borrowed from the regulations, and if you're outside the jurisdiction of the regulations, that term of art, is inapplicable.

Moderator: [00:09:17] Justice Greenspan, do you want to add to that?

Justice Greenspan: [00:09:19] Yes. It should also be noted that schools can use a facilitator and should use a facilitator in any informal resolution process and that person under the new regs, but under any circumstances, should be someone who is trained in Title IX and also should be someone who has good experience in mediating disputes.

Moderator: [00:09:48] What are the benefits of informal resolution?

Justice Greenspan: [00:09:50] What's been considered very important in today's world is that informal resolution may lead to restorative justice and that has become a very popular term for repairing the harm that occurred through whatever bad incident happened.

So, what happens there is there is a collaboration between the accused and the accuser. Through this collaboration, they can resolve the differences, and in fact, things like apologies can be done. As we all know, an apology can certainly go a long way. Also, you're in a situation where both students can agree on the outcome that they can live with and be comfortable with.

 Of course, each knows that they can withdraw from this informal resolution at any time. In the event that they're not happy with the way it is proceeding, but usually with a good mediator or good facilitator, both sides feel that they've been heard. The emotional strain can be reduced, and they feel that they have a way forward in terms of their future, their educational future, and even professional future, which may be involved in the accusation that has been made.

So, there are great benefits to informal resolution. Usually, that does require, though, a good facilitator because otherwise you can get in a situation that can exacerbate the situation and that has to be avoided, which a good facilitator can do.

Moderator: [00:11:52] And other disadvantages and pitfalls to consider, Rich?

Richard Birke: [00:11:55] Well some disadvantages, of course, when you do things informally, you kind of invite people to let their guard down a little bit. There are all kinds of issues that are legitimate issues about the mediation process, about the informal resolution process. You certainly don't want to retraumatize anybody by making them tell a story in an environment in which they're uncomfortable, to the extent that they're sitting in the same room with somebody that has been the subject of an accusation or allegation. There could be some tension, some hard moments. Some people are concerned that important issues might be swept under the rug if they're resolved confidentially. So, there are issues, but I will say the big deal for a school is similar to the Good Samaritan rule. If you're gonna do it, you have to do it right. Are you going to be bringing in mediators and facilitators to help with the informal resolution?

Are these people adequately trained? Are you going to keep a sufficient size panel? Where are you going to find your people? How are you going to screen cases? Because there's an art to matching the neutral facilitator with the problem at hand. Some things can be handled by somebody who is skilled but not super skilled.

Sometimes you need to bring in somebody with the qualifications of Justice Greenspan-- really bring in a heavy hitter. That requires somebody at the school to be making those screening recommendations. The school needs to keep records. The school needs to be able to balance consistency with discretion, so that an individual who enters into a process knows that the outcome isn't dependent on luck of the draw as to which individual is sitting in the middle. But, by the same token, you don't to handcuff that neutral so that they can't do what they do well. You need a person to do intake. You need to advertise this program continually so that people understand that it's available.

You need to maintain an appropriate space in which informal resolution can happen. So, you can't do informal resolution in a hallway. It can't be a place that people pass through. There's so much that goes into the creation of an environment where informal resolutions can blossom that a school needs to be mindful.

There's a research pair, their names are Dunning and Kruger, and they have a psychological phenomenon named after them. It stands for the principle that people who don't know much about an area think that it's easier than it is, and experts understand how difficult it is to gain even more expertise.

At JAMS, we often have people mediating cases on our territory so that there's no home turf advantage. We've set our rooms up in ways that are comfortable for a wide variety of people. If you really think about what's gone into the creation of JAMS, which is now more than four decades old, tiny little decisions can make a big difference as to whether mediation or informal resolution is going to work.

I would think that universities that may be a little bit more attentive to student outcomes in education than to dispute resolution might not have learned the same kind of tricks that we at JAMS have had to learn over the course of our time. So, there's more to it than meets the eye and like the Good Samaritan, you don't necessarily have to undertake this, but if you're going to do it, you have to do it as well as can be done.

Justice Greenspan: [00:15:50] Let me also add a couple of things. First of all, frequently lawyers are also involved in these Title IX cases. When you have lawyers involved, then it is helpful to have someone who is not necessarily just a school individual, as Rich indicated, who may not have not just the knowledge but the gravitas of someone who is a trained mediator or a facilitator of some kind to help because the lawyer's get quite involved also, but the mediator or facilitator knows how to use the lawyers to help advance the process toward a resolution.

That's very important. The other point that I'd like to make is that rules are always...I need to be very cognizant to make sure that they're not harming the students in any way. Many of these cases do end up in court because a student feels that they have not been fairly treated and I'm talking accuser, just as much as accused and as so doing an informal resolution really resolves the issue so that both people can go forward without feeling that they've been harmed by the process. That's extremely important, I think.

Moderator: [00:17:22] Justice Greenspan, can you talk about your personal approach to informal resolution?

Justice Greenspan: [00:17:27] Well, I think that it's important to give each student, or anyone involved in the process or anyone who's in the dispute, a sense that the process is fair.

That's very, very key. You have to feel like you're being treated fairly and not in any way different from the other side or that there's some bias in the way that you're being asked to resolve this dispute. I also want to give the students very much a sense that they have a say in how their future at that institution will be going forward and how this resolution will help them in terms of proceeding with their educational life, as well as professional life.

Moderator: [00:18:24] Rich, as you said, at the outset, you are steeped in academia. Why in your opinion is JAMS so well-equipped to assist higher education institutions in resolving their Title IX disputes.

Richard Birke: [00:18:34] Okay, so just think about who you have on this podcast right now. You have a person who was a justice of the highest court in her state who has massive experience doing Title IX work. And as a trainer, you have somebody who has 25 years of experience as a professor, 30 years in dispute resolution and prior to my entry into dispute resolution, I worked in part as a sexual assault prosecutor.

JAMS has judges, justices, lawyers from every field, ex deans of schools, professors, current professors, dozens of teachers and, of course, we have the administration that you crave. That's our secret sauce. If you call JAMS, your case is handled expertly and bottom line, as I said at the beginning, dispute resolution is why our company exists.

It's everything we do. It's all we do. So, JAMS has a real commitment to helping everybody who needs help in any kind of dispute and our commitment to Title IX and the educational process is long-term, serious and well-staffed. We're going to be there when you need it.

Moderator: [00:19:50] Okay, Justice Greenspan, any final thoughts?

Justice Greenspan: [00:19:52] It's very important to get forth the idea that we can really help schools who are faced with a very, very significant problem in the area of sexual harassment and sexual assault. Rich has indicated why it's important to involve experts in this area.

Moderator: [00:20:15] Well, we'll leave it there. Justice Greenspan, Rich. Thank you so much for being with us.

Justice Greenspan: [00:20:19] You're welcome.

Richard Birke: [00:20:20] Thank you. Thank you for having us.

Moderator: [00:20:23] You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guests have been Richard Birke, executive director of the JAMS Institute and a Vice President of JAMS and Justice Jane Cutler Greenspan, a JAMS neutral. For more information about JAMS Solutions for higher education, please visit www.JAMSadr.com/solutions. Thank you for listening to this podcast from JAMS.