Three Questions with Amber Attalla and Britt Swett

Bernstein Shur’s Amber Attalla and Britt Swett answer questions about informal resolution in misconduct proceedings.

What is informal resolution?

As organizations, businesses, and educational institutions across the country grapple with an uptick in bias, discrimination, and sexual misconduct complaints, they are seeking less onerous and more restorative alternatives to conflict resolution. Informal resolution (also referred to as adaptable or alternative resolution) is an approach to conflict that focuses on repairing harm through a participatory, voluntary, and remedies-based process. Informal resolution serves as an alternative to formal investigations and disciplinary proceedings and can be utilized to address many of these types of complaints. Whereas a formal process is punitive in nature and focuses on one individual, a trauma-informed and restorative informal process focuses on the harmed parties and broader community and seeks accountability and repair. 

A formal process asks:

• Who did it?
• What policy or law was violated?
• How should the individual be punished?

An informal resolution, guided by principles of Restorative Justice,[1] asks:

• Who has been harmed?
• What are their needs?
• What can be done to repair the harm and whose obligation is it to address it?
• What else must be done to eliminate the conduct, prevent its recurrence, and remedy its effects?

What does an informal process in cases of misconduct look like?

There is no “one size fits all” approach to informal resolution; every process looks different depending on the needs of the parties involved. Often the process begins with the facilitator meeting with administrators at the organization to gain a better understanding of the complaint, internal policies, and impact on the organization. A facilitator may then hold an individual meeting(s) with the parties to gain a better understanding of what happened, identify the harm that was caused, and explore potential action steps, with direction from the organization. After the parties have agreed to a course of action, a document is prepared detailing the steps that need to be taken by the individual who caused harm. After this meeting, the facilitator will continue to check in with the parties and the organization to ensure the requirements of the resolution agreement are being met. Depending on the nature of the matter and the needs involved, the harmed party/parties may request a facilitated discussion or written exchange with the individual(s) who caused harm. An experienced facilitator leads the meeting(s) to ensure the process is trauma-informed and restorative. 

What are the benefits of hiring an attorney to facilitate the informal resolution process?

Complaints of bias, discrimination, and sexual misconduct are inherently sensitive and complex. When an organization, business, or educational institution receives a complaint of this nature, an attorney with expertise in this field can facilitate a restorative, comprehensive, and equitable informal process. When hiring an attorney to facilitate an informal resolution process, it is critical that they have training and experience in the areas of trauma, Restorative Justice, and relevant state and federal anti-discrimination laws. Hiring an attorney with the requisite training and expertise ensures neutrality throughout the informal process and minimizes the risk of bias or a conflict of interest. Additionally, these complaints often implicate federal and state discrimination laws; an experienced attorney can ensure a legally compliant informal resolution process and minimize the risk of exposure. 

[1] Restorative Justice refers to a variety of reparation practices, with many rooted in Indigenous traditions.