 as well. There's an echo. Okay. Okay, resolve. Also, if the remedy could impact somebody's career in a very meaningful way, that increases risk. Also, if public statements are made about an individual that could harm their reputation and those statements are false or made with reckless disregard for their truth or falsity, that also increases risk. So this is really, really hard work. As I mentioned before, you can't make everybody happy, but you can treat everybody with respect and ensure a fair and thorough process. Also, when incidents are public in nature, and even when they're not public in nature, I mean, communities are tight groups of people who form friendships and collaborate and work closely, and any incident can become highly politicized and divisive within a community. So fairness is really essential. Actual fairness and the optics are important to be mindful of as well. So at a very high level, what does Code of Conduct Fairness look like? Well, first of all, everybody needs to have notice of the acceptable standards of conduct, what behavior is okay and what behavior is not okay in this community, and that's usually expressed with the Code of Conduct itself. The process for enforcement needs to be clear and transparent. The investigation needs to be fair and thorough, so all available evidence needs to be considered in evaluating the outcome. And if consequence is beyond just a warning or a conversation or a mediation or under consideration, it's very important to give the accused person an opportunity to be heard and present their perspective inside of the story and evidence. There may be some rare situations where that is not appropriate because it would expose certain people to further harm, or the risks of retaliation are so great, and the documentary evidence is so clear. But if there is a, she said they said situation, it's often important to interview everybody involved and invite them to present any documentary evidence that they have. Triers of fact need to be impartial, that's so important. So if there is a member of the Code of Conduct Committee who is the accused person or close friend with the accused person, or a direct target or victim of the alleged wrongdoing, or a close friend or somebody with a close professional relationship to that person, it's very important that they not only recuse themselves, but that they're not allowed to access confidential information about the investigation. And any consequences need to be appropriate given both the severity of the wrongdoing and the impact to the community. And sometimes there's a situation where the severity of the wrongdoing and the impact to the community are kind of in opposite directions, and that creates a unique challenge in determining what's the right remedy here. Your documentation should address, in addition to what the acceptable standards of conduct are, how to report violations, who is responsible for responding to a resolving Code of Conduct incidents, how the conflicts of interest will be dealt with, and what your policies are related to protecting the anonymity and privacy of reporters, witnesses, victims and targets. Ideally your Code of Conduct documentation would also address these issues, whether the Code of Conduct can be enforced outside of community spaces and to what extent. The appeal process, if you have an appeal process, I'd say that it's a minority of communities that have an appeal process at this point in time, but there are communities that do have an appeal process. The Code of Conduct committee's ability to delegate or escalate, which we'll talk a little bit about the situations in which that might be important later, and then how the Code of Conduct enforcement team fits into the broader governance structure of the community. It's really critical that trials of fact be impartial and independent, so we talked earlier about recusal. Also consider thinking about the difference between a hard conflict and a soft conflict. So hard conflicts are where somebody is actually directly involved in an incident as a victim or target or the accused person, and there might be some soft conflicts as well that may give the appearance of bias and partiality, but it's kind of a close call whether or not there's actually a conflict of interest that would prevent this person from exercising independent decision making. So sometimes everybody in the Code of Conduct committee has a conflict of interest, actual or perceived or hard conflict or soft conflict. There are also situations where the severity of the offense is so great and the legal risks are so great and the number of hours required to investigate are so great that it may make sense to pull in outside help. So for example, hiring an independent professional external investigator, having alternates in the community who have gone through training and are available to step in if everybody in the primary committee has to recuse themselves due to conflict of interest. Consistency is also very important for a fair process. So you want to treat similar violations similarly in terms of the consequences, remedies and outcome. You don't want to give later consequences to somebody just because they're popular in the community or they're in a leadership role or else that will undermine the actual and perceived fairness. So every time you make a decision as an incident responder, you are setting precedent for how similar violations in the future are going to be handled. It's very important to balance transparency with privacy. It's important to be transparent about your processes, about your procedures and about your policies, how it is you go about responding to and resolving incidents. But it's when it comes to the content of an incident, particularly if the facts underlying the incident could expose victims or targets or witnesses to retaliation or embarrassment, it's very, very important to protect their privacy. We'll talk a little bit about best practices throughout the process and I have a flow chart here that talks about the stages of incident response. First you receive a report or otherwise learn of a potential violation. Then there's investigation or just gathering facts and that can either be immediate or it can sometimes take many months depending on how clear the facts are, how much documentary evidence you have and how many witnesses need to be interviewed. Then there's the process of the committee getting together or if you don't have a committee, all the incident responders getting together and determining what should be the remediation and the outcome. If there is a violation or there is problematic behavior. Mediation can be part of this process of both gathering facts and determining what the best outcome is. If there are consequences, particularly if you're pursuing a restorative or transformative justice outcome, it's important to have accountability for ensuring that everybody who has agreed to participate in the restorative outcome follows through on their assigned role. Then it's important to document and communicate the results to the involved parties and to some extent the broader community again while protecting confidentiality and privacy. When responding to a report it's important to let thank reporters for coming forward and treat their report with sensitivity and care and also let them know what the process is going to look like. If you have great documentation of your processes you can just link to that great documentation. Of course let them know that they will be informed when the investigation is completed. Sometimes it's necessary to implement interim protective measures even before an investigation is completed. If the nature of the alleged violation is severe enough that it creates a risk to community health and safety it may be necessary to take interim actions right away. For example removing somebody from an event or temporarily banning them from project spaces until the investigation can be completed and it can be determined what should be the more permanent remediation if necessary. So if just a warning is going to be issued it's not often it's not always necessary to perform a thorough investigation but if anything beyond a warning might be appropriate it is important to be thorough in gathering information, interviewing all available witnesses and this is something that code of conduct responders can often be subject to criticism from the broader community for. Often community members, again we work in open source and we're used to things happening very very quickly. When there's a bug we get it fixed right away. When it comes to human issues, human bugs, those are often require a lot more care and a lot more time to resolve. It's important to take careful notes throughout the process especially if there's a high risk of legal action or liability. When conducting an interview find a quiet safe space that you can speak in confidentiality. If the person just experienced harm they could be traumatized, they could be very emotional. So it's very important that you create a safe space in which they can share. If they have immediate needs around safety be sure to address those first and then proceed with the interview. I like to encourage if I sense that somebody who is a witness or a target or somebody who may have suffered harm is in a traumatized or emotional state or that they might have years around retaliation, I usually start the interview by encouraging them to breathe, to go at their own pace, reassure them that it's okay if they don't remember all the facts right now. There will be other opportunities to provide more information and let them know they can take breaks. Otherwise just be kind and sensitive and empathetic while keeping them focused on the facts of the incident so that you can gather the information you need. While you are performing the investigation don't offer your opinions about whether the code of conduct was violated. That is something for the broader committee to decide after you've gathered all relevant facts. Sometimes you'll be speaking to one person and it may sound like a very clear case and then you speak to another witness or you speak to the person who is accused and you learn oh wow there are multiple perspectives to every story. Then when we proceed to the stage of evaluating whether a violation occurred, this is usually where the code of conduct committee or the incident response team meets and gathers and reviews the evidence, discusses it and talks about what the appropriate next steps are. So I want to encourage you to think about moving beyond binary outcomes. So in traditional code of conduct response we decide definitively has a violation occurred or has it not occurred and then we decide what the consequences are going to be. That's not essential in every situation. Sometimes whether a violation occurred is so subjective or so borderline that it's just not clear. Sometimes the behavior may not technically violate the code of conduct but it's still problematic. It's still negatively impacting the community and so it's still worth having a conversation with that person about you know hey your behavior is impacting other people. It's being disruptive to the community. Can you please do better? And the code of conduct resolution is never to punish. It's to protect and uphold community, health, well-being and safety and to reinforce norms of acceptable behavior of how people can treat each other in a community. So when a violation has occurred consider at a minimum these factors in what the remedies should be. The severity of the behavior, the risks and impact of the community of the behavior and the impact of the community of the remedy that's under consideration and whether the violator is able and willing to learn from their mistakes and improve. And whether the problematic behavior is a single incident or recurring pattern of behavior. So let's talk a little bit about restorative and transformative justice. And I'm not, these are complex rich frameworks and philosophies. It's outside the scope of this presentation to do a deep dive into either. But sort of at the essence restorative justice is about remedying and repairing the harm that was caused and healing it. And although this is somewhat fuzzy it historically has tended to focus on healing the harm between the accused and the person who experienced harm as a result of their actions. And transformative justice takes even further and looks at are there systemic issues that contributed to or encouraged the wrongful behavior. So for example is the community somehow unintentionally or unconsciously rewarding bad behavior. Is the community not being clear about the acceptable standards of conduct when onboarding new members? Our project leaders contributing to the situation by not providing adequate coaching and mentoring as people about community culture as people enter the community. So transformative justice focuses on the bigger picture of community and focuses not just on healing between the accused person and the people who directly experience harm but how do we create healing and resolution at a broader community level. And transformative and restorative justice definitely overlap more than I'm giving them credit for here but I'm presenting them in that way for simplicity of our conversation. So transformative and restorative justice are going to be most successful when there are certain factors present. So when the wrong doer is willing to show humility and take responsibility for their actions, understand and acknowledge the impact of their actions and learn from their mistakes and improve that is when it is most likely when a restorative justice outcome is most likely to be successful. If the alleged wrong doer is not willing to learn from their mistakes, not willing to take responsibility, not willing to acknowledge impact, it's very hard to create healing at least with respect to that particular person's relationships within the community. And to seek a restorative or transformative justice outcome it's very important that the broader community also take a role in that. The broader community needs to create a safe space for learning and growth to occur without excessive shaming or punishment. The broader community needs to commit to supporting everybody in healing from the incident, supporting people in embracing differing perspectives on an incident especially when it's really polarizing. So bringing people together so they can see and understand and empathize with how other people see an incident. And there needs to be willingness to create systems for accountability and providing support even to the accused person in improving their behavior. Maybe it's through coaching or mentoring or education. And if there are systemic issues that are creating an environment in which bad behavior can flourish, that needs to be addressed as well. So when deciding what the remedies or consequences should be of alleged wrongdoing or of violation, historically the traditional consequences have been, those are the ones listed in the left. So a warning, a temporary or permanent ban, revoking somebody's leadership position, revocation of certain privileges. When we're seeking a transformative or restorative outcome, there are, sometimes we have to get kind of creative about how do we actually address the underlying harm. So sometimes that's in the form of an apology, but it's very important that apology be sincere and that whoever is giving the apology, it's not just lip service. That they actually understand and internalize the impact of their actions on the community. It can look like providing the accused person with mentoring, coaching, training, educational opportunities. It could involve requiring the accused person to go through anger management training or consent training or nonviolent communication training depending on what the nature of the wrongful behavior was. There could be a community service aspect to it also. If they contributed to creating an unsafe or abusive toxic environment in some ways, they could be asked to support the community in enhancing positive cultural norms. They could have a role in actually shifting the culture that encouraged their wrongful behavior in the first place. That's very powerful. If you can get people involved aligned to that outcome and purpose, it's so powerful because it creates healing at so many different levels. It's healing and validating for the people who experience harm. It prevents further harm from happening in the community and it also creates closure and resolution for the person who engage in wrongdoing. It allows them a chance to make things right and feel good about being embraced by the community again. Then the community sees that everyone's coming together to create broader healing and resolution for the good of all. That is so, so powerful. It's not always easy to get there, but if you can, it's very powerful. One of the tools that can help aid a transformative or restorative justice resolution is mediation. Mediation can be formal, it can be informal, it can be done by community members. If it's a particularly challenging incident where emotions are very, very heated, it may be helpful to engage a professional mediator or somebody who has conflict resolution training. Also, there are some situations where reported violations aren't really about the code of conduct itself. It's not really about community norms of behavior. It's interpersonal conflict. It's two people who don't like each other for whatever reason and are running their butting heads. It's not the code of conduct incident response team's job to resolve all interpersonal conflicts, but when it starts impacting a project and how people are able to collaborate and move forward and develop great technology, sometimes an intervention and mediation is helpful. Mediation, of course, is only an option when everybody consents to that, when everybody is okay with that. That includes the people who feel harmed by the incident. Sometimes those people don't want to be in the same room as a person that they see as a wrongdoer. Sometimes that's just too hard for them. Sometimes that's traumatizing for them. You have to respect the wishes of all people involved. You can't force mediation. But you can also offer, if the people who were harmed by an incident don't want to be in a room with the person who engaged in wrongful behavior, you can offer to be an intermediary to convey messages back and forth, including an apology, but again, only if everybody consents. Any type of mediation needs to be highly customized to the parties involved and their desires and what they're comfortable with. Also, mediation is probably not going to be successful unless everybody is open and receptive. And that means not digging in your heels and saying, you know, I'm right and they're wrong, 100%, but having some humility to accept that there are multiple perspectives to every incident. And usually people are trying their best in their world from their lens. Often people who engage in wrongful behavior aren't intending to cause harm. If they're intending to cause harm, mediation is probably not the right resolution. So a skillful mediator can help prepare the parties for that conversation and help evaluate are the parties ready for this conversation. There are a few different styles of mediation. I'm not going to discuss, we don't have time to discuss all of them, but some are more formal and less formal transformative mediation. I encourage you, if you're interested in learning more about conflict resolution, I encourage you to read and learn about that. These slides are available on the event platform. And so you can follow this link. Transformative mediation is probably the best form of mediation for resolving community conflicts because it's very empowering. It involves the people involved in creating their own remedy and resolution and healing. In the final steps of incident resolution, it's about documenting and communicating results. Communicating results to the accused person, the people who reported. And to some extent it can involve the broader community. And, of course, if there is a mediated outcome rather than an outcome determined by the incident responders, then the parties involved will participate in the communications that go out to the broader community if there are communications. So there are some communities like Linux Foundation events that publish transparency reports that don't include personally identifying, identifiable information, but include the general nature of the incident and how it was resolved. And then there are other transparency reporting mechanisms like Kubernetes, for example, that publishes statistics about number of reports received, number of violations found, et cetera. So the accused person has been found in violation. It's important whether or not that person is going to continue to participate in the community. Again, if we're looking at supporting people in growing and learning, it is important to explain what was the behavior at issue? What was the impact to others? Why is that behavior negatively impactful? And if there are appeal rights, of course, communicating that as well. When communicating the reporters, the incident response team should have some discretion and flexibility as to how much they communicate about the investigation and the outcome, always being kind and sensitive and empathetic. So there are some situations in which it's not wise to communicate much information in the broader community, particularly if it would expose. It's difficult to communicate that without exposing the involved people to risk of retaliation or embarrassment. If it's difficult to explain the incident without even if you don't include personally identifying viable information, it can sometimes be easy for community members to guess who the people involved are. In case there is a legal dispute, it's important that you've documented your processes and your deliberations well to establish that there was a fair, thorough, and good faith investigation. And having access to records is also important for purposes of consistency. And also knowing if somebody is a repeat offender. We are almost out of time. So the slides are available. So you are welcome to browse through them and contact me if you have questions. But I'm going to wrap up here to see if there are any questions. We have time for probably one or two questions. Nithya. Yes. Great question. So Nithya's question was about how do people get trained? So there are some training programs for incident response. OtterTech has a good training. Consent Academy offers a much more extensive training that happens over a series of multiple weeks. There probably need to be more training resources developed. And I encourage communities and foundations to pay for all of their incident responders to go through incident resolution training. So Amy's question was about what do I see as the innovation in code of conduct incident resolution? I think the innovation right now really is about bringing the transformative and restorative justice lens to this work. About not just thinking about the incident as something isolated and we need to respond to it, but thinking about incidents in the context of a broader system. So Ava's question is who are the pioneers in doing that work? I don't have, off the top of my head I don't have a list of names. I mean there are pioneers in that thinking generally. I would say that there are a lot of people in this community who are bringing that lens and advocating for bringing those perspectives to code of conduct resolution. Yes. I think I quite understood the question. So they were making physical weapons? Oh, okay. So the question was about somebody complaining that a vendor at a conference was making a present. Okay. Because they're a military supplier and they make weapons. And were they bringing weapons to the event or distributing them? Yeah, well I mean I don't know of course all the facts there and I don't know what that code of conduct for that community, how that reads. Oh, okay. So we're out of time. I'll chat with you offline about that. Thank you everybody.