Resolution through Informal or Formal Process

A complaint of harassment or discrimination may proceed through an Informal Resolution Process. The Seminary encourages informal resolution of conflict when the parties desire to resolve the situation cooperatively and whenever such resolutions can be effected fairly through conversation between the Complainant and Respondent. 

The Informal Resolution Process is an option for most claims of discrimination or harassment made pursuant to this policy. In addition, the Informal Resolution Process may be an appropriate avenue to address situations that fail to honor the aspirations of the Seminary’s Community Grievance and Discipline Policy which values direct, face-to-face communication as we engage conflict.³ 

Through the Informal Resolution Process, participants can learn how to engage with conflict and others in a productive manner. Successful informal conflict resolutions can help people to communicate more clearly, negotiate effectively, develop and evaluate solutions, or resolve conflicts. When participants control and shape their outcomes in structured mediations, they are more likely to be satisfied with the process and the outcome. In this Informal Resolution Process, the parties will have trained mediators available to assist in facilitating conversation between parties. 

The Coordinator or a designated person will serve as the Intake Officer. At the point of the Intake Interview, the Intake Officer will gather information about the case and discuss the Informal and Formal Resolution Processes, as appropriate, with the Complainant. The Intake Officer will then review the complaint to determine whether the case may proceed through the Informal Resolution Process. The Intake Officer will notify the Complainant if it is appropriate to proceed with the Informal Resolution Process. An attempt to informally resolve a complaint is not required before an individual may use formal procedures. In addition, some cases will not be deemed appropriate for informal resolution. 

This Informal Resolution Process may be used by Seminary employees, students, family members, and any other individuals who participate in the Seminary’s programs or activities or who are otherwise on campus. At any time, either party may request that the Informal Resolution Process end, and that the matter be referred for a formal investigation. 

Disciplinary outcomes are not assigned in an Informal Resolution Process, though the parties may agree to appropriate remedies or other courses of action which may be documented and become binding upon the parties. Resolution of a complaint through the Informal Resolution Process means that there will not be any formal finding(s) by the Seminary that a policy was violated. If the Complainant wants a definitive finding on whether the alleged misconduct constitutes a violation of policy, the Informal Resolution Process is not appropriate. 

There are three main stages in the Informal Resolution Process: 

• Stage 1 – Selection of the Type of Informal Resolution 
• Stage 2 – Agreement on the Informal Resolution Process (and mediator, if applicable) 
• Stage 3 – Reaching a Resolution 

Stage 1 – Selection of the Type of Informal Resolution 

The first stage in the Informal Resolution Process is the selection of the type of informal resolution. During the Intake Interview or shortly thereafter, the Complainant who has chosen the Informal Resolution Process discusses various options with the Intake Officer. Two suggested approaches for Informal Resolution include: Direct Approach and Mediation. 

a. Direct Approach – With this method, the Complainant directly approaches the person who is believed to have violated a UPSem policy in an attempt to resolve the problem. This may be done either in person or in writing. If the Complainant chooses to write a letter or a memo, the person must state the facts as they see them, share concerns, and identify what, in their view, should happen next. If the Direct Approach is in person, the Complainant, either alone or with their advisor and/or support person, may meet with the Respondent (and the Respondent’s advisor and/or support person if applicable) to discuss the situation, identify the behavior in question, be clear that the specific behavior must cease, and reach a resolution on how to move forward. Either party may reach out to an advisor who can assist in preparing for this conversation. The Coordinator or designated Intake Officer will also be available to assist as needed. The Coordinator or designated Intake Officer will not serve as an advocate for any party but will serve in an impartial role as a resource for this conversation. 

b. Mediation – With this method, a mediator helps the parties find their own resolution. Both parties must agree to mediation. The mediator may coach the parties on conflict resolution, serve as an intermediary between the parties, and/or bring the Complainant and Respondent together to attempt to resolve the problem. The Complainant, either alone or with their advisor and/or support person, may meet with the Respondent (and the Respondent’s advisor and/or support person if applicable) to discuss the situation, identify the behavior in question, clear up misunderstandings, determine the underlying interests or concerns, find areas of agreement and ultimately, to incorporate those areas of agreement into a resolution. 

Advisors can provide guidance and help both the Complainant and Respondent prepare for this meeting. The Coordinator will also be available to assist as needed. 

The Complainant can choose from a pool of mediators provided by the Seminary. The pool includes a limited number of trained volunteers from the community: employees and students. The mediator will facilitate the conversation and process and will help the parties discuss the problem and explore solutions. The mediator is a neutral party serving to help people communicate clearly, negotiate effectively, and reach a voluntary, negotiated resolution of a charge of harassment or discrimination. Mediators do not give legal advice, take sides, impose solutions, or make decisions about resolutions. 

c. Other Options – In addition to the two suggested approaches, the parties may propose additional informal resolution processes. 

Stage 2 – Agreement on the Informal Resolution Process (and mediator, if applicable) 

After the Complainant has decided how to proceed, the Respondent will be informed through one of two means: 

• The Complainant may choose to inform the Respondent of the filing and invite them into a conversation with or without a mediator to settle their dispute. The Complainant can use email to notify the Respondent, if desired. 
• The Complainant may also request that the Intake Officer notify the Respondent of the complaint that has been filed and the process for the conversation. 
• Both parties must agree to proceed via the Informal Resolution Process. If both parties do not agree to the Informal Resolution Process, the dispute will proceed through the Formal Resolution Process. 

If a mediator has been selected, the Complainant or Intake Officer must notify the Respondent of the identity of the mediator. Both parties must agree to use the identified mediator. If there is a conflict with the mediator as identified by either parties or the mediator, the parties must choose a different mediator that both agree upon. 

Upon agreement to participate in the Informal Resolution Process, the parties must agree on a day and time for their mediation. The timetable for this meeting is based on the availability of all parties, but it is to be scheduled within two weeks from the time the Intake Officer receives the complaint. The Informal Resolution Process should not take more than thirty (30) calendar days to resolve. 

Stage 3 – Reaching a Resolution 

Once an agreement or resolution is reached that is satisfactory for both parties, the agreement should be written and signed between the parties, copied, and filed with the appropriate offices, as follows: 

• Director of Human Resources (disputes involving administration, staff, other employees, visitors, etc.) 
• Dean of Students (disputes involving students, family members, etc.) 
• Academic Dean (disputes involving faculty, teaching assistants, field education site supervisors, etc.) 

The Title VI and Title IX Office maintains records of all Informal Resolution Agreements involving complaints of protected class harassment or discrimination. Any breach of the agreement by either party can serve as grounds to create a new complaint. If the parties are unable to resolve their conflict through the Informal Resolution Process, the parties have the option of engaging the Formal Resolution Process. 

Rather than proceed through the Informal Resolution Process as described above, a case may proceed through a Formal Resolution Process. A case may also start in the Informal Resolution Process and be moved to the Formal Resolution Process. 

A Complainant with a claim of discrimination and harassment that is a violation of this policy may choose the Formal Resolution Process. The Coordinator or designated Intake Officer may insist on the Formal Resolution Process to address reports of violent conduct of any kind (i.e., cases of sexual violence) or where a Respondent appears to present a threat to the Seminary community. Allegations of Quid Pro Quo harassment of a student by an employee may only be handled through the Formal Resolution Process.

The Formal Resolution Process may proceed through one of two paths: A Determination Panel for non-Title IX cases or a Hearing Panel for Title IX cases. The Hearing Panel is required for all cases that qualify as Title IX violations and proceed through the Formal Resolution Process. Other cases of alleged harassment or discrimination that proceed through the Formal Resolution Process will be addressed by the Determination Panel. 

There are three main stages in the Formal Resolution Process: 

Stage 1 – Investigation 

• Interview and Fact Gathering 
• Evidence Review 
• Investigation Report 

Stage 2 – Decision to Continue or Dismiss 

Stage 3 – Resolution by Determination Panel (non-Title IX) or Hearing Panel (Title IX) 

Stages 1 and 2 involve the investigation and decision of whether to proceed, and are the same for all formal cases. The Formal Resolution Process diverges at Stage 3, the resolution stage, depending on the type of violation. 

Stage 1 – Investigation 
The first stage in the Formal Resolution Process is the Investigation. Following the Intake Interview and the determination that the matter will proceed to an investigation, the Coordinator will assign the complaint to an Investigator. Any assigned Investigator will be trained in the application of this policy, trauma- informed interviewing practices, and the proper application of due process and fundamental fairness.  

The Investigation process, up to evidence review, is generally expected to take thirty (30) calendar days, which may be extended for good cause by the Coordinator. Both parties will be notified, in writing, of any extension granted and the reason for the extension. The three elements of an investigation include interview and fact gathering, evidence review, and investigation report. 

Interview and Fact Gathering 

Each party will be provided an opportunity to offer relevant witnesses and evidence. The Investigator will consider all relevant evidence. The Investigator has the authority to determine the relevance of any evidence offered or gathered. The Seminary will not restrict the ability of the parties to discuss the allegations or gather evidence. 

The Investigator will interview all parties and relevant witnesses, and gather relevant documentary evidence provided by the parties and any identified witnesses. The Complainant and Respondent may have an advisor present during the interview process. Interviews may be conducted in person or via video conference. Witnesses may also have an advisor present during the investigation interview. The advisor may be present during interviews as long as they do not, in the sole judgment of the investigator, interfere with the interview and investigation. 
The Investigator also prepares a written summary of each interview. Within five (5) business days of the interview, the Investigator will share the written interview summary with the interviewee. 

Throughout all stages of this process, questions and evidence about the Complainant’s prior sexual behavior are not relevant and will not be asked, unless such questions and evidence about the Complainant’s prior sexual behavior are offered: (a) in order to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or (b) if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent, and are offered to prove consent. 

The privacy of a party’s medical, psychological, and similar treatment records will be protected. The Seminary cannot access or use such records unless the Seminary obtains the party’s voluntary, written consent to do so. 

Evidence Review 

At the conclusion of all interviews and evidence gathering, the Investigator will provide each party with a “Summary of Evidence Report” (listing or inventory of the evidence), and the opportunity to review all of the evidence gathered during the investigation that is directly related to the allegation(s) at issue. 

Following delivery of the Summary of Evidence Report, each party will have ten (10) business days during which it may provide further evidence or submit a written request to the Investigator for additional investigation, such as a request for interviews with new and different witnesses, or a request that the Investigator conduct follow-up interview(s) with existing witnesses to clarify or provide additional information. Each party may also, at its discretion, offer written, relevant questions to the Investigator to pose to witnesses or to the other party. 

Upon receipt of each party’s further evidence or request for additional evidence, the Investigator will determine if any further investigation is needed. The Investigator, in its sole discretion, will take into account any new evidence provided, pose questions to parties or witnesses as appropriate, interview new witnesses, and accept new relevant evidence. If any of the questions provided are excluded by the Investigator as not relevant, or not likely to lead to relevant information, the Investigator will explain to the party who requested the questions its decision to exclude the question as not relevant. 

If new relevant evidence is provided by either party, or gathered by the Investigator, the newly gathered evidence (including answers to clarifying questions) will be made available for review by each party as part of the Investigation Report. 

Investigation Report 

The Investigator then prepares a written Investigation Report summarizing all of the relevant evidence gathered and presented in the Summary of Evidence Report along with all investigative steps taken to date. Each party will be provided with a copy of the written report and will have ten (10) business days to provide a written response. Upon receipt of any response(s), the Investigator completes the Investigation Report, which will include as an attachment all relevant evidence gathered during the investigation, as well as all interview notes and interview summaries, showing the original (as sent to each interviewee for review) and the revised version, after corrections or additions by each interviewee. 

Stage 2 – Decision to Continue or Dismiss 

Following the investigation, the Coordinator will review the final Investigation Report, with attachments. The Coordinator may require that the Investigator conduct additional investigation. Once the Investigation Report is final and accepted by the Coordinator, the report and all attachments will be presented to each party. 

Following delivery of the report, the Coordinator will decide whether the case should continue to determination by a panel or should be dismissed. In addition, at this juncture the Coordinator may, in his or her discretion, also dismiss a complaint if the Complainant informs the Coordinator in writing that the Complainant desires to withdraw the complaint or allegation, if the Respondent is no longer enrolled or employed by the Seminary, or if specific circumstances prevent the Seminary from gathering sufficient evidence to reach a determination. In the event of dismissal at this point in time, the Coordinator will give the parties written notice of dismissal and the reasons for the dismissal. 

In addition, at any time prior to the commencement of a Determination Panel or Hearing Panel, any case proceeding under this policy will be dismissed if it is determined that the conduct at issue does not meet the jurisdictional requirements of this policy. In Title IX cases, the Seminary must dismiss allegations of conduct that do not meet the Title IX definition of sexual harassment or did not occur in the Seminary’s education program or activity against a person in the United States. If the conduct is not a violation of Title VI or Title IX but nonetheless does not support the Seminary’s values, the case may be redirected to the Informal Resolution Process. If the alleged conduct would, if true, support a finding that another Seminary policy has been violated, the Seminary may recommend the case be moved or transfer the case to the appropriate office or committee for further handling under the appropriate policy. 

Stage 3 – Resolution by Determination Panel or Hearing Panel 

The Formal Resolution Process for Stages 1 and 2 are the same for all cases. Here at Stage 3, the process may diverge into one of two paths depending on the type of case. After the investigation and a decision to continue with a Formal Resolution Process, non-Title IX cases will proceed to a Determination Panel. Title IX cases will proceed to a Hearing Panel. 

Determination Panel (non-Title IX violations) 

Within three (3) business days of receipt of the final written Investigation Report for any non-Title IX case, the Coordinator will appoint a three-member Determination Panel from a group of trained members of the UPSem community. 

The Complainant and the Respondent are each provided written notification of the names of the persons serving on the Panel. Within three (3) business days of receipt of the names of the panel members, either party should inform the Coordinator (in writing) of any conflicts of interest in regard to the selected members proposed to be assigned to the Determination Panel. If a conflict of interest is raised regarding any of the individuals assigned to the Determination Panel, the Coordinator will consider the nature of the conflict and determine if different individuals should be assigned to the Determination Panel. 

The Determination Panel will review the Investigation Report and make a determination based on a Preponderance of the Evidence Standard as to whether or not the Respondent is responsible for violating the policy by having engaged in some or all of the reported conduct. The Determination Panel may not change any of the underlying factual findings of the Investigator. However, the Determination Panel has the authority to accept the Investigation Report without seeking additional investigation, or to ask the Investigator to conduct additional investigation on specific points. The Determination Panel also has the authority, in its discretion, to meet with the Complainant and the Respondent, separately. However, this is not an opportunity for either party to provide additional evidence, and any new evidence provided at this stage will not be considered, unless it can be clearly demonstrated that such information was not reasonably known to, or available to, the parties at the time of the investigation. Should new evidence be presented, the Determination Panel has the authority to send the matter back for further, limited investigation. 

The Determination Panel will then convene and apply a Preponderance of the Evidence Standard to determine whether the factual findings support a determination that the policy was violated. 
If the Determination Panel finds that there is no policy violation, the Panel will inform both parties, in writing, of its decision. 

If the Panel determines that the policy has been violated, the Panel includes its determination and any recommended remedies and sanctions in a written report, including its rationale. 
The Panel’s written report will be sent to the Coordinator and to the appropriate administrator for consideration. Administrators who receive these written reports are determined based on the category of the Respondent: 

Complaints filed against a student or family member – The written report will be sent to the Coordinator. 

Complaints filed against administration, staff, other employees, visitors, or other third parties – The written report will be sent to the Coordinator and the Human Resources Director.  Complaints filed against faculty, adjuncts, teaching assistants, or field education site supervisors – The written report will be sent to the Coordinator and to the Academic Dean. 

The administrator may not overturn the decision of the Determination Panel regarding whether a policy violation has occurred. However, the administrator may choose to accept the Determination Panel’s recommendation for a remedy or sanction or issue a different remedy or sanction. Any prior misconduct or disciplinary matters relating to the Respondent may be considered in making this determination. At a minimum, any remedy or sanction must be reasonably calculated to end harassment and prevent its recurrence. The determination will then be sent in writing to both parties. 

After the decision on the remedy or sanction has been made, the Coordinator will, as necessary, take appropriate action to ensure that the Seminary comes into compliance with Title VI, Title IX, and the goals of this policy in a manner that is prompt and equitable to the involved parties. For example, the Coordinator may assure that appropriate changes to housing, academic programs, or working conditions are implemented. While the action taken by the Coordinator may impact third parties, such action is not intended to be punitive (or constitute disciplinary penalty) with respect to these third parties. 
Hearing Panel (Title IX violations) 

The U.S. Department of Education requires a hearing process for Title IX violations that proceed through the Formal Resolution Process. After the investigation process is complete and it is determined that the case meets the Title IX definition of sexual harassment, the case will proceed to a Hearing Panel. Each party will be provided with a Notice of Hearing, which will include information regarding the date of the hearing, the names of the three members of the Hearing Panel, and any deadlines for submission of evidence, names of witnesses, or questions to be reviewed by the Hearing Panel to ensure relevance. The hearing will be scheduled no less than ten (10) business days from the date of the Notice of Hearing. 

Within three (3) business days of receipt of the Notice of Hearing, either party may object to any member of the Hearing Panel, on the basis of an actual bias or conflict of interest. Any objection must be made in writing and sent to the Coordinator. Should the Coordinator determine that there is an actual bias or conflict of interest, the Coordinator will remove the particular Hearing Officer and appoint another. 

Each party is entitled to one advisor at the hearing. The role of the advisor is to ask questions of the other party and of witnesses. The Complainant and Respondent are not permitted to ask questions directly. Only the advisor asks the questions. If either party does not have an advisor at the time of the hearing, a trained advisor will be provided by the Seminary. 

Hearings may be in person or via videoconferencing. Prior to the hearing, the Hearing Panel will have received instruction regarding the operation of any audio-visual equipment for the hearing. Each hearing will be recorded. No other individual is permitted to record while the hearing is taking place. The recording is the property of the Seminary but may be available for listening by appropriate parties by contacting the Coordinator. 

The Complainant, Respondent, and the Hearing Panel all have the right to call witnesses. Witnesses must have information relevant to the incident. No party will be permitted to call as a witness anyone who was not interviewed by the Investigator as part of the Seminary’s investigation. Witnesses are not permitted to have advisors at the hearing. Each party submits the names of witnesses they would like to call no less than five (5) business days in advance of the hearing. 

The Hearing Panel has the authority to limit the time allotted to any phase of the hearing, and/or to limit the time allotted to the full hearing. Any such limitation will be communicated to the parties no later than three (3) business days before the hearing. 

The hearing is not the appropriate time for either party to provide additional evidence, and any new evidence provided at this stage will not be considered unless it can be clearly demonstrated that such information was not reasonably known to, or available to, the parties at the time of the investigation. Should new evidence be presented at the hearing, and the Hearing Panel determines that it will allow it to be presented, the Hearing Panel has the authority to suspend the hearing and send the matter back for further, limited investigation with regard to the new evidence. 

The hearing starts with an overview of the hearing process from the Hearing Panel, which is as follows: The Hearing Panel will pose questions to the Complainant. The Respondent’s advisor will then pose questions to the Complainant. Next, the Hearing Panel will pose any additional questions it has. If the Respondent’s advisor has any follow-up questions for the Complainant, the advisor will then ask those questions. The same process will then be followed for questions posed to the Respondent from the Hearing Panel, followed by questions from the Complainant’s advisor to the Respondent. This process will then be followed for any witnesses who are to be interviewed.

The Hearing Panel may, in its sole discretion and by providing a brief rationale, refuse to allow questions that seek information that the Panel determines is not relevant under this policy. If either party does not appear for the Hearing, their advisor will be present for the purpose of asking questions of the other party, or of witnesses. 

At the conclusion of the hearing the Hearing Panel will convene and apply a Preponderance of the Evidence Standard to determine whether the factual findings support a determination that the policy was violated. 

The Hearing Panel will then prepare a written report. To the extent that credibility of the evidence needs to be made, it will not be based on a person’s status as Complainant, Respondent, or witness. The Hearing Panel’s report will be provided to the parties within five (5) business days after the hearing. 

The Hearing Panel’s report will include the allegations, description of all procedural steps, findings of fact, conclusion of application of facts to the policy, rationale for each conclusion, recommended remedies and sanctions, and procedure for appeal. The written decision will not be redacted, and will be sent simultaneously to each party.