The definition of roles and procedural steps are specific to the Adaptable Resolution process, which may not match the definitions of similar terms used throughout other sections of the Student Handbook.
Roles/Definitions
Complainant
An individual who is alleged to be the victim of conduct that could constitute sexual misconduct, sexual harassment, or sexual harm. For the purposes of Adaptable Resolution, the Complainant is one who submits a formal complaint through the Title IX Office and voluntarily initiates the Adaptable Resolution process. Once the AR is initiated, this person is then referred to as the “Harm Reporter”.
Community Representative
Person(s) who are part of the university and/or local community. Community representatives may participate in an Adaptable Resolution facilitated process to voice their opinions and experiences, discuss community impact, and participate in the creation of the Written Agreement of Resolution. Community representatives will only participate in the Adaptable Resolution Process if the Harm Reporter(s) and Harm Responder(s) request and agree to their participation.
Facilitator(s)
Person(s), often a university staff member, who has been trained in Restorative Justice practices, particularly as they relate to sexual harm. The facilitator(s) conducts the Adaptable Resolution process. Facilitators, with the approval of the parties and at OSARP’s discretion, may include trained individuals who do not work at the university.
Harm Reporter
The person(s) who reports sexual harm they experienced and initiates the Adaptable Resolution process by filing a formal complaint with the Title IX Office.
Harm Responder
The person(s) who responds to the sexual harm referred by the Harm Reporter. In the Adaptable Resolution process, the Harm Responder typically acknowledges the sexual harm, addresses needs, and fulfills agreed upon obligations.
Participant(s)
When used throughout, "participants” refers to all persons actively involved in the Adaptable Resolution process.
Party/ies
When used throughout, “party/ies” refer to both the Harm Reporter and the Harm Responder.
Respondent
An individual who has been reported to be the perpetrator of conduct that could constitute sexual misconduct, sexual harassment, or sexual harm. For the purposes of Adaptable Resolution, the Respondent is one who receives notice of a formal complaint through the Title IX Office and voluntarily agrees to participate in the Adaptable Resolution process. Once the AR is initiated, this person is then referred to as the “Harm Responder”.
Support Person
A person who accompanies a participant in the Adaptable Resolution process to provide guidance and support. Support Persons should accompany their participant at meetings through the process; therefore, the facilitator(s) will not meet separately with Support Persons unless deemed necessary.
Formal Complaint Investigation Process and Adjudication
The formal complaint investigation process conducted by the Title IX Office and either the Sexual Misconduct Accountability Process or Title IX Sexual Harassment Adjudication Process, as applicable, through OSARP.
Adaptable Resolution Process Overview
In certain cases, OSARP offers Adaptable Resolution as an option to address harm of a sexual nature between parties. Adaptable Resolution is derived from Restorative Justice principles but may not entirely align with typical Restorative Justice procedures. Adaptable Resolution is designed to meet the needs of the individual who experienced the sexual harm by eliminating the prohibited conduct, preventing its recurrence, and remedying its effects while maintaining the safety of the overall campus community. Adaptable Resolution is a voluntary, structured, and intentional process that provides an opportunity for the parties involved to acknowledge the sexual harm that was created, recognize needs that may be associated with the sexual harm, and fulfill outcomes to address those needs.
To initiate an Adaptable Resolution process, a Complainant must file a Formal Complaint of the alleged behavior by the Respondent with the Title IX Office prompting written notice to both parties of the allegations. Prior to filing a Formal Complaint, a Complainant may request to meet with a staff member from the Title IX Office and an OSARP Adaptable Resolution facilitator for a Title IX Interest Meeting. During the meeting, the Complainant will learn about the Formal Complaint Investigation process and the Adaptable Resolution process. Once notified of formal and informal options available to address the alleged behavior, the Complainant may voluntarily elect to initiate the Adaptable Resolution process. Additionally, in order to utilize Adaptable Resolution to address sexual harm, participants must acknowledge that harm occurred and agree to the terms of the process. Adaptable Resolution is not available if the university deems there is a risk to safety and/or the needs, as identified, are outside the scope of the Adaptable Resolution process. All participants may withdraw their participation at any time up until a written agreement of resolution is signed. Additionally, the university reserves the right to alter, suspend, or terminate the process at any time if it is deemed necessary to uphold the intent of the Adaptable Resolution process. The facilitator(s) will make reasonable efforts to communicate with all parties in the Adaptable Resolution Process and may refer a case back to the Title IX Office after multiple failed attempts to communicate with a party. If an Adaptable Resolution process is terminated by the university, the Harm Reporter may pursue the formal complaint process and adjudication for the allegations, as applicable.
Adaptable Resolution is separate and distinct from a Formal Investigation through the Title IX Office and the Title IX Sexual Harassment Adjudication Process or Sexual Misconduct Accountability Process, as applicable. Therefore, Adaptable Resolution does not constitute a full investigation and adjudication of alleged sexual misconduct or sexual harassment. Adaptable Resolution is considered an Informal Resolution under the Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance final rule released by the U.S. Department of Education, 34 CFR Part 106, and as an Alternative Resolution under JMU Policy 1340 and JMU Policy 1346. Additionally, the university does not require participation in an adaptable resolution process as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints of sexual misconduct or sexual harassment.
An Adaptable Resolution process generally will not result in a university disciplinary record, and at no point will the process result in a transcript notation. Adaptable Resolution may only result in a disciplinary record if a written agreement is reached and outcomes are not fulfilled, as outlined in section IV. Written Agreement of Resolution of this policy. Additionally, information shared during the Adaptable Resolution process will be kept confidential by OSARP staff, including the facilitator(s), except to the extent permitted by law. The facilitator(s) will not share narratives with the other party(ies) without verbal permission. The facilitator(s) will send a copy of the Written Agreement of Resolution (if an agreement is reached) to the Title IX Office at the end of the Adaptable Resolution Process. The facilitator(s) will have to report a participant’s plans to harm oneself or others, behaviors that are required to be reported to the Title IX Office (aside from the behavior included in the Formal Complaint), hazing behavior, and criminal activity to the appropriate university offices. The facilitator(s) will also have to report any information received regarding abuse and neglect of children or vulnerable adults. If there is information shared regarding the personal consumption of drugs or alcohol by student participants in the Adaptable Resolution process, OSARP will not initiate the Accountability Process and pursue alleged violations of these policies. The facilitator(s) will not participate as a witness or share information gained during the Adaptable Resolution process for use in the formal complaint investigation process and adjudication, should it occur. Records kept throughout the Adaptable Resolution process may be disclosed in response to a subpoena or court order. Records kept in an Adaptable Resolution case file will include any forms signed by participants in the process; signing forms in the Adaptable Resolution process does not indicate an admission of responsibility for a policy violation. Additionally, records created through Adaptable Resolution will be destroyed after eight academic years from when the Adaptable Resolution process is finalized in OSARP.
Intake Meeting(s), Preparation Meetings, and/or Facilitated Process(es) within the Adaptable Resolution Process will not be audio and/or video recorded. Participants are not permitted to make their own recordings.
The Title IX Office and OSARP will keep a record of persons who participate in an Adaptable Resolution process. If the Title IX Office receives a new allegation regarding a Harm Responder who has previously completed Adaptable Resolution, the Harm Responder’s eligibility for subsequent Adaptable Resolution processes will be determined by the university on a case-by-case basis.
OSARP uses restorative practices to address incidents of harm not of a sexual nature through the Restorative Practices process. For more information on this process, see the Restorative Practices section of the Handbook.
Features of Adaptable Resolution
The following are features of the Adaptable Resolution process.
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Prior to the Adaptable Resolution process, the university will provide parties with written notice of the allegations, requirements of Adaptable Resolution, and any records that may result from participating in Adaptable Resolution.
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Requirements of Adaptable Resolution include a party’s ability to withdraw from the Adaptable Resolution process to resume the formal complaint investigation process and adjudication, if applicable, for the alleged behavior up until a written agreement of resolution is signed.
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Adaptable Resolution records include information kept in an Adaptable Resolution case file, as described in the Handbook. Records may be disclosed in response to a subpoena or court order.
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In order to proceed with Adaptable Resolution, all parties must provide voluntary, written consent.
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Adaptable Resolution processes require multiple meetings, and the entire process typically lasts anywhere between several weeks to several months depending on the needs of the participants involved.
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Parties in the Adaptable Resolution process may bring one Support Person with them to any meeting provided the Support Person is able to attend.
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Generally, Support Persons do not speak on behalf of a party during the Adaptable Resolution process. Generally, parties will share their perspective of the incident themselves.
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Support Persons should not negatively influence the Adaptable Resolution process. A negative influence may include, but is not limited to, engaging combatively in the process.
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The Facilitator(s) may prevent the participation of a Support Person if they determine that the Support Person may negatively influence the Adaptable Resolution process based on demonstrated actions in previous intake or preparation meetings. The Facilitator(s) may also remove a Support Person during the facilitated process who violates the expectations set forth in the Rules of Decorum.
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Parties may request reasonable safety accommodations be put in place such as teleconferencing or police presence. Any requests for reasonable safety accommodations should be shared with the facilitator(s).
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Participants are expected to show good faith effort throughout the Adaptable Resolution process.
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Parties should attend scheduled meetings.
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These meetings include, but are not limited to, exploratory meeting(s), preparation meeting(s), intake meeting(s), and facilitated process meetings.
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Information regarding alleged policy violation(s) shared in the process will generally not be pursued by OSARP unless determined necessary by the Director of OSARP or designee.
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Adaptable Resolution is not offered in circumstances in which a student alleges sexual misconduct or sexual harassment by an employee of the university.
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Participants may also be made aware of information on the academic, mental health, personal well-being, and campus resources available to students at James Madison University, please visit: https://www.jmu.edu/osarp/resources/index.shtml.
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Procedures
Adaptable Resolution will generally follow the procedures below. The facilitator(s), in consultation with the Director of OSARP or designee, reserve the right to alter the Adaptable Resolution procedure in order to uphold the intent of the Adaptable Resolution process.
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Prior to filing a Formal Complaint, a Complainant may request to meet with a staff member from the Title IX Office and an OSARP Adaptable Resolution facilitator for a Title IX Interest Meeting. During the meeting, the Complainant will learn about the Formal Complaint Investigation process and the Adaptable Resolution process. A Title IX Interest Meeting may take the place of an Exploratory Meeting. After a Title IX Interest Meeting, an Exploratory Meeting may be scheduled to discuss the Adaptable Resolution process further.
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To initiate the Adaptable Resolution process, the Complainant must file a Formal Complaint through the Title IX Office regarding harm they experienced and voluntarily decide to pursue the Adaptable Resolution process. Once the facilitator(s) receives the referral from the Title IX Office, the facilitator(s) will meet with the Complainant and Respondent(s) separately to explain the Adaptable Resolution process. This meeting is called the Exploratory Meeting. Attending the Exploratory Meeting does not obligate the Complainant or the Respondent to participate in the Adaptable Resolution process.
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During the Exploratory Meeting, the facilitator(s) will:
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Explain the roles, features, available processes, and potential outcomes of an Adaptable Resolution process
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Gauge participant interest in the process
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Discuss communication preferences
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Answer questions
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If the Respondent is not interested in participating in the process, the facilitator(s) will consult the Complainant to share options available to them. This could result in the Complainant deciding to pursue the formal complaint investigation and adjudication process, as applicable, and/or other options.
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If both parties wish to continue with Adaptable Resolution, the facilitator(s) will determine if the case is appropriate to continue with the Adaptable Resolution process. If the case is determined to be appropriate, the process will continue to intake meetings. The terms of the parties then change from “Complainant” to “Harm Reporter” and “Respondent” to “Harm Responder,” respectively.
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The intake meeting is a time for the facilitator(s) to meet with the Harm Reporter and Harm Responder separately to hear their perspectives, discuss their goals for the process, and share relevant information regarding the process.
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The facilitator(s) may request to meet with other individuals identified by the parties as potential participants in the process. The facilitator(s) reserves the ability to deny a recommended individual’s participation in the process if it is determined they could negatively influence the process, which may include, but is not limited to, engaging combatively in the process.
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The facilitator(s) may also recommend individuals whose participation may be helpful to the Adaptable Resolution process. If the facilitator(s) suggests adding a participant, the parties must agree on the individual’s participation for them to be invited in the process.
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It is common for multiple Intake Meetings to be needed before moving to the Preparation Meeting(s).
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During the Intake Meeting(s), the facilitator(s) will ask questions such as:
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What happened from your perspective?
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How have you been impacted?
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Who else has been impacted?
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What needs to be done to make things as right as possible?
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Facilitators will also discuss facilitated process options and work with each party to select an appropriate option which is agreeable to all parties.
The preparation meeting is the last one-to-two meeting(s) that occurs before moving to the facilitated process. The preparation meeting is a time for the facilitator(s) to prepare each party for the facilitated process of their choice and assess their readiness to participate. The parties will have separate preparation meetings.
During the preparation meeting, the facilitator(s) will:
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Review questions that will be asked during the facilitated process
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Ask each party to consider what they would like to share with the other party/parties during the facilitated process
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Review potential voluntary obligation and outcome options
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Ask each party to consider which voluntary obligations and outcomes they would like to include in the Written Agreement of Resolution
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Discuss logistics, including but not limited to, safety accommodations, seating arrangements, and arrival/departure times
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Answer questions about the facilitated process
Facilitated Processes
The Adaptable Resolution process includes several facilitated options to discuss the impact of the behavior, address the sexual harm caused, identify needs, and develop obligations. Participants are encouraged to be open and honest about their perspectives during facilitated processes. The wishes of the Harm Reporter, the context of the incident, and the needs of those involved will be taken into consideration when determining an appropriate facilitated process. For one of the following processes to be pursued, all participants and the facilitator(s), must agree to the selected process. There may be circumstances in which it is appropriate to combine different facilitated process options. While not an exhaustive list, the most common facilitated process options are below.
Shuttle Processes
A shuttle process consists of separate, alternating, facilitated meetings between the facilitator(s) and each party (and potentially other participants) to discuss perspectives in order to identify harms experienced, meet needs, and develop obligations. In a shuttle process, participants would only interact with each other indirectly through the facilitator(s) and would not meet face-to-face for a facilitated conversation unless desired and agreed upon by the parties. This process would conclude with the development of obligations.
Letter/Video Exchange
A letter/video exchange consists of individual meetings with each party and the facilitator(s); participants would only interact with each other indirectly through the facilitator(s) and would not meet face-to-face. A letter/video exchange would involve each party crafting an impact letter or video with the assistance of the facilitator(s) and the facilitator(s) sharing the letter or video with the other party. The other party then may respond to the letter or video provided. This process would continue through the development of obligations.
Conference
A conference is a semi-structured, facilitated, face-to-face, conversation with typically only the directly impacted participants, which most often include the facilitator(s), parties, and support persons, if applicable. During a conference, the facilitator(s) helps parties engage in a conversation regarding harms and needs.
Circle Process
A circle process is a structured, facilitated, face-to-face, conversation in which all participants sit in a circle and take turns participating and sharing their perspectives, generally using a talking piece to prompt reflection and discussion. A circle process involves several participants coming together to share perspectives and learn more about harms created, effects of harms, and ways to repair the harms. This practice usually involves 4 or more participants, which most often include the facilitator(s), parties, support persons, and indirectly impacted participants, as applicable.
Written Agreement of Resolution
Written agreements of resolution include mutually agreed upon outcomes and obligations, which will be developed to meet the needs associated with the sexual harm.
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The process of creating outcomes is collaborative. All participants are encouraged to share and contribute to the outcomes in a written agreement.
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In order to repair the stated harms and needs, as agreed upon by all parties, the written agreement will include outcomes for the Harm Responder(s) to complete and may also include action items for the Harm Reporter(s).
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Resolutions that are created and agreed upon will be developed into a written agreement. For written agreements to take effect, they must be signed by the parties and the facilitator(s). After the written agreement is signed, the agreed upon outcomes become obligations that the party(ies) are expected to complete.
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Once a written agreement is signed, the agreement takes effect and the Harm Reporter may not pursue the formal complaint investigation and adjudication process, as applicable, for this specific incident.
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At their discretion, and depending upon the circumstances of a case, OSARP may pursue an alleged policy violation for Noncompliance if the obligation(s) and outcome(s) listed in a written agreement are not met by the Harm Responder.
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If OSARP pursues an alleged policy violation for Noncompliance for not fulfilling the obligations specified in the written agreement of resolution, the written agreement of resolution and other related information be shared in the adjudication process as evidence that the obligations were not met.
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If found responsible for violating the Noncompliance policy through OSARP’s Accountability Process, the Harm Responder is considered to have a university disciplinary record and their case file(s) is retained in accordance with the procedures outlined in the “Records and Transcript Notations” of the Student Handbook.
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If no agreement of outcomes is reached, the Harm Reporter may pursue the formal complaint investigation and adjudication process, as applicable.
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The Title IX Office will be informed of the agreed upon outcome(s) of the Adaptable Resolution process.
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Obligations and outcomes are voluntary agreements and intended to facilitate restoration to the greatest extent possible. Potential obligation and outcome options may include, but are not limited to:
- Alcohol and/or drug education program(s)
- Apology letter
- Community service
- Meeting(s) with a specific individual
- Moving Forward Sexual Misconduct Educational Program
- No contact agreement
- Other university program(s)
- Reflection paper
- Restitution
- Restriction from participation in specific events
- Restriction from participation in specific organizations
- The Mentor Experience
- Values in Action Educational Program
