February 12, 2008

U Washington Faces Lawsuit Despite Mediation by Ombuds

Yesterday, the Washington Appellate Court ruled that a lawsuit against the University of Washington had been improperly dismissed by the trial court. The plaintiff in the case has alleged that she was raped by a Husky football player and that UW then treated her with "deliberate indifference." In its opinion, the three-judge appeals panel cited "ample evidence" to argue before a jury that the UW tried to keep quiet the 2001 allegation by discouraging the accuser from filing a police report, opting instead for a face-to-face mediation session with the University Ombudsman.

The plaintiff was a former equipment manager for the football team. She claims that a consensual sexual relationship with Roc Alexander became increasingly abusive and culminated in an assault. Months later, the plaintiff went to the UW athletic department and reported what had happened. She was advised to step down from her position with the team to avoid harassment by any of the players. Refusing, she agreed to attend a three-hour mediation overseen by the University Ombuds, where she asked that Alexander be suspended from the football team. The plaintiff alleged that at the conclusion of the mediation, the Ombuds "decided that Alexander would undergo counseling and perform community service." The plaintiff also claimed that, although the UW has a program for sexual-assault victims, the Ombuds did not refer her to that program.

In interviews with Seattle Times, the plaintiff said the mediation was "totally biased" against her. "I think that's the thing that has stuck with me -- how [the mediation] was run and the lack of outcome." The current UW Ombuds said Monday that the UW no longer uses mediation in cases of alleged sexual assault. (S.S. v. Alexander, No. 58335-2 (Wash. Ct. App., Feb. 11, 2008); Seattle Times; Seattle Post-Intelligencer.)

The procedural posture of the case dictated that the appeals court assume the plaintiff's version of facts to be true in order to address the legal sufficiency of her claims. These facts will therefore be challenged and tested in the trial court. Nonetheless, this case is sure to raise concern among ombuds and mediators. Here are the highlowlights of the court's decision:
  • The UW Ombuds has a mandate to assist in protecting students' rights, is charged with the authority to receive complaints from students, and may recommend redress by the University President when the Ombuds has been unable to resolve the matter;
  • The decision to conduct the mediation was made by the Ombuds, the Athletic Director, and the Assistant Athletic Director;
  • The Ombuds did not disclose on-campus or off-campus resources to the plaintiff;
  • The Ombuds revealed details of her conversation with Alexander to the plaintiff before the mediation;
  • Mediation communications by the parties and the Ombuds/mediator came in to evidence (with no consideration of Washington's statutory mediation privilege);
  • The mediation was resolved by a decision by the Ombuds/mediator and the Assistant Athletic Director;
  • After the mediation, the Ombuds/mediator dictated a written statement for the plaintiff, acknowledging the matter was closed; and
  • The Ombuds was an "appropriate official" for purposes of notice under Title IX.

Ombuds can take some solace in the apparent fact that the UW program does not conform to IOA Standards of Practice and thus is not an Organizational Ombuds per se. In particular, the mandate for the UW Ombuds specifically prevents it from being neutral, impartial, and informal. Moreover, the UW Ombuds disclosed communications that Organizational Ombuds would consider confidential. However, since the court did not recognize these distinctions, this is small comfort.


  1. This case is very troubling for Ombuds, especially academic Ombuds who may now be considered "appropriate officials" for purposes under Title IX. This conclusion was reached in part because the Ombuds was able to "institute corrective
    measures.” Lesson: Don't impose corrective measures.

  2. The fact that this office does or doesn't follow the almost bibical guidelines of the IOA has little to do with how the Ombuds behaved in this case. I am sick of hearing how the IOA (USA) standards are seen as some sort of holy grail for the rest of the world. If you'd stop suing each other at the drop of a hat this wouldn't be that big of an issue.

  3. I don't fully understand your first comment, but would argue that (the court's description of) the Ombuds' conduct did not conform to the ethical guidelines of most ADR professionals. Putting aside IOA, the standards for mediators would preclude the neutral from limiting a party's choices or making a decision. In addition, the general ADR standards would compel the neutral to assert a privilege and seek separate counsel.

    I'll freely admit I have a bias toward IOA Standards. However, this is because there seems to be no other entity providing guidance for Organizational Ombuds in the US. Unless and until there is a viable alternative (including a defined legal protection), that's what I'm backing. I don't mean to imply that IOA Standards should preempt guidelines for other types of Ombuds. I'd like to see Ombuds everywhere prosper.

    Finally, I agree that the need for IOA Standards is partly driven by the litigious nature of US society. I don't see that going away soon. I take consolation in the hope that a well-established Ombuds profession will reduce litigation.

  4. Very disturbing. This Ombuds was a trained mediator???