Or. Admin. Code § 574-032-0130

Current through Register Vol. 63, No. 11, November 1, 2024

Section 574-032-0130 - Hearing with Mediators

The Campus Student Conduct Program at Western Oregon University places confidence in the process of Mediation as a preventative and educational method of intervention for Student misconduct. When the Campus Student Conduct Program makes use of Mediation it does so with the primary goal of diverting Students from the Adjudicative and, in some cases, adversarial hearing process. The anticipated outcome of this action is for Disputants to voluntarily create a resolution to their conflict that is confidential and non-binding. The Campus Student Conduct Program is primarily an Adjudicative process which often must address allegations that a Charged Student's behavior harmed another person. In some of these cases, Mediation may be used as a diversion or as a sanction in the form of victim/offender reconciliation (with the exception of sexual harassment or sexual misconduct cases). The nature of a case involving a Victim and an offender necessitates a modification of the way Mediation traditionally is structured. In Victim/offender Mediations, participation by the Charged Student may not be voluntary, the mediated agreement may not be confidential, and the mediated agreement may become binding for the Charged Student.

(1) Uses:

(a) Use of Mediation in the Absence of Charges. Disputants not charged with a violation of the Code may use Mediation at any time by making a request for Mediation services at the Office of the Vice President for Student Affairs or the Office of Student Conduct. This includes Victim/offender Mediation in which the Victim declines to file a complaint and the Office of Student Conduct does not pursue the allegations;

(b) Use of Mediation after a Complaint is made. When a Victim files a complaint with the Office of Student Conduct alleging that the behavior of a Charged Student harmed a person, or when action is initiated by a report of harmful treatment to the person, Mediation may be used in place of the Adjudicative process, provided both Victim and Charged Student agree to such Mediation. In cases involving sexual misconduct or sexual harassment, Mediation is not an option. All charges are suspended pending the outcome of the Mediation. The Victim has the right to return the complaint to the Office of Student Conduct for a formal judicial review if the Victim is not satisfied with the outcome of Mediation;

(c) Student in Violation and Victim Chooses Mediation. When a Charged Student has been found in violation of any section of the Code where that Charged Student's behavior victimized or harmed another Member(s) of the University Community, Victim/offender Mediation may be assigned as a sanction, except in cases involving sexual misconduct or sexual harassment.

(2) Mediation Procedures. A Charged Student(s) may request to use Mediation at any time during the Adjudication process (with the exception of sexual misconduct or sexual harassment cases). A Victim may request Mediation without filing a complaint. Mediations of this type are non-binding except in cases noted below, and confidential to the extent permitted by law.

(a) Victim/Charged Student, Voluntary Mediation:

(A) Mediation between a Victim and a Charged Student may occur at the request of either party and with the consent of and voluntary participation of both parties;

(B) Before or during a student conduct hearing, the Office of Student Conduct may offer Mediation to a Charged Student in place of that hearing;

(C) When all parties agree to Mediation, Mediation will be used in place of the Adjudicative process;

(D) Agreements reached when Mediation is used in place of Adjudication will be binding with the permission of the Victim. Permission for a binding agreement will be given to the Office of Student Conduct by the Victim prior to the Mediation. In such a case, the binding agreement becomes a de facto sanction and will become part of the Charged Student's judicial file. The Charged Student must adhere to the agreement or face possible future Adjudicative action;

(E) The Victim may, at any time, withdraw permission for a binding agreement or withdraw the complaint. In this case, the Mediation becomes confidential and non-binding;

(F) The Victim may, at any time, withdraw the complaint and withdraw from the Mediation process;

(G) The Charged Student may, at any time, withdraw from the Mediation process. Such action by the Charged Student, however, may return the original charges to the Adjudicative process;

(H) If the Victim reports dissatisfaction with the outcome of the Mediation the Victim may return the complaint to the Adjudicative process for a student conduct hearing; and

(I) The Office of Student Conduct will, in most cases, honor the Victim's request to withdraw the complaint from the Adjudicative process. The Office of Student Conduct may, however, Adjudicate charges whenever it is determined that it is in the best interest of the University community to do so.

(b) Mandated participation in Mediation when charges of theft, vandalism, harassment, assault, or other harmful treatment are upheld through the Adjudicative process (except for sexual harassment and sexual misconduct cases). Participation in Victim/offender Mediation may be assigned to the Student in Violation as a sanction. When Mediation is used as a sanction, the following will apply:

(A) The Victim must agree to such a sanction in advance;

(B) The Student in Violation must verify that Mediation was attempted in order to fulfill the sanction of Mediation; and

(C) Unless otherwise requested by the Victim, agreements reached during sanctioned Mediations will be submitted to the Office of Student Conduct. This agreement will serve as a part of the sanction which the Student in Violation must complete. Failure to abide by the agreement may result in the Student in Violation facing further judicial charges for failure to complete a sanction.

(c) Automatic Diversion from the Adjudicative Procedures:

(A) When two or more Students have been charged with violating the Code for the same event, the Office of Student Conduct may offer, or the Students may request, to use Mediation as a diversion from the Adjudicative process. The Dean of Students, Student Conduct Coordinator or designee may assign interim sanctions pending the Mediation. The following conditions must apply:

(i) Two or more Students have been involved in the same incident,

(ii) The Students have each been charged with violations of the Code based on the same incident,

(iii) The Students are each victims of the other's behavior (e.g., by assault, vandalism, theft, etc.),

(iv) The Students agree to fully participate in Mediation,

(v) The Students agree to share the results of the Mediation with the Office of Student Conduct, and

(vi) The mediated agreement becomes binding and must be adhered to by both parties as a sanction unless otherwise indicated by the Office of Student Conduct.

(B) The Office of Student Conduct may return the case to the Adjudicative process for the following reasons:

(i) One or more of the Students does not participate in the Mediation,

(ii) Substantial evidence exists that one or more of the Students poses a clear and present threat to themselves or others; or

(iii) One or more of the Students fails to adhere to the agreement.

Or. Admin. Code § 574-032-0130

WOSC 2-1996, f. & cert. ef. 11-12-96; WOU 3-2001, f. 8-28-01, cert. ef. 8-31-01; WOU 2-2003, f. & cert. ef. 8-1-03; WOU 2-2005, f. & cert. ef. 8-4-05; WOU 2-2012, f. & cert. ef. 7-31-12

Stat. Auth.: ORS 351.070 & 351.072

Stats. Implemented: ORS 351.070 & 351.072