Mediation and the Perfect Apology

27 - Mediation (iStock_000002604667XSmall)A genuine, sincere apology can become a powerful catalyst for healing the emotional wounds caused by an offense and perhaps even bring about reconciliation in a bitter dispute. In fact, deeply satisfying apologies have been known to cause injured parties to set aside legal action against their offenders. A study conducted in 1994 reported that 37% of patients and the families who had filed medical malpractice suits indicated that “an explanation and apology were more important than monetary compensation, and that they might not have filed suits had they been given an explanation and apology.”[1] In 2002, the University of Michigan Health System began to encourage employees to apologize for mistakes, and saw its annual attorneys’ fees cut from $3 million to $1 million as the number of cases dropped from 262 in 2001 to roughly 130 annually.[2]

One attorney described the dramatic impact of apology in a case he litigated on behalf of the plaintiff:

The wrongdoer himself tearfully acknowledged his role in the tragic accidental death of my client’s son. It had a huge impact on the settlement of the case. There would never have been a lawsuit if the same person had made the same comments to the mother during the 30-day period in which her son lay dying in the hospital, or during the three days his young body was at the funeral home. The sad part in that case is that the defendant and his company wanted to express the same thought near the time of the accident, but claimed to have been prohibited from doing so by their insurance carrier.”[3]

 

Apologies: Outlawed

For an apology to be satisfying, it must possess several essential qualities, including:

  • complete acknowledgement all negligence or wrongdoing
  • full ownership of responsibility for the injury caused
  • priority given to the welfare of the offended party over one’s own
  • an offer of restitution where possible or appropriate

Unfortunately, under our current system of justice, expressing a genuine apology puts the offending party at immense risk of losing everything. Can you imagine an attorney advising his or her client to admit wrong and offer restitution? Better to say nothing at all! A poor apology will quite likely cause the offended party to feel all the more justified in punishing his or her offender. As one attorney noted,

The very nature of our adversarial system is antithetical to the setting needed to allow an apology to emerge. . . . It inescapably generates defensiveness. It is a system that relies on rationalization: there are differing standards of proof depending on differing kinds of wrong. It deals in degrees of culpability (first degree murder, justifiable homicide, etc.) and rationalizes mitigating circumstances (it was due to an impaired self, diminished capacity, external forces) (Tavuchis, 1991, p. 19). Yet, this prevarication is precisely what apology is not, and cannot be, if it is to work.”[4]

 

Two Canadian provinces, British Columbia and Saskatchewan, have recognized the immense potential of apology to satisfy plaintiffs before reaching the courts and to cultivate a generally more peaceable society. Moreover, legislators recognized the need for the judicial process to remove itself from normal, gracious human interaction. Therefore, both provinces implemented laws declaring apology to be inadmissible as evidence of negligence or culpability against the defendant.[5] Three states, California, Texas, and Massachusetts, have ratified laws declaring some apologetic language inadmissible, but it falls far short of Canadian provisions. Expressions of sympathy cannot be used against the defendant, but any statements indicating fault may be used to prove liability. Naturally, this necessarily robs any potentially heartfelt apology of its power to heal and reconcile. In fact, it does little more than protect people from “excited utterance,”[6] such as exclaiming, “Oh, I’m so sorry you’re hurt,” at the scene of an accident. So, at present, attorneys are wise to continue advising their clients to avoid making any apology acknowledging fault.

Mediation to the Rescue

The training I received in mediation opened my eyes to a grand opportunity, especially as it relates to divorce, involving perhaps the most deeply personal issues taken before the courts. According to the Texas “Alternative Dispute Resolution” statute, “all communication relating to the subject matter of a civil or criminal dispute made by a participant in an alternative dispute resolution procedure . . . whether before or after the institution of formal judicial proceedings, is confidential.”[7] In other words, a genuine, sincere apology made in the context of a mediation session cannot be used against either participant.

The implications should be obvious. Attorneys need not counsel “against truth telling when a client is genuinely sorry and sincerely regrets his involvement in someone else’s suffering.” [8] Mediation can become a protected means of expressing a truly satisfying apology and even offering restitution without fearing legal decimation. This protection affords both parties legal protection while doing what is morally and socially right by one another.

While the law virtually commands citizens to avoid any admission of guilt or neglect, and to deny error in order to preserve legal superiority, our society and our own consciences demand another response. We must take responsibility for our own actions, especially when those actions harm someone. However, we bear no obligation to be punished excessively. Mediation provides a means for the guilty to do what is right by their victims and to apologize sincerely.

I’m encouraged to see that our civil statues and good, old common sense can sometimes reconcile their differences.

 


[1] Van Dusen, Virgil and Spies, Alan, “Professional Apology: Dilemma or Opportunity”, American Journal of Pharmaceutical Education 2003; 67(4) Article 14, p. 3.

[2] Associated Press, “Doctors Urged to Apologize for Mistakes; Softer Approach Aims to Reduce Malpractice Lawsuits”, November 11, 2004.

[3] Bruce W. Neckers, “The Art of the Apology,” Michigan Bar Journal (June, 2002), 11.

[4] Carl D. Schneider, “What It Means To Be Sorry: The Power of Apology In Mediation,” Mediation Quarterly, Vol. 17, Number 3 (Spring 2000).

[5] Russell J. Getz, “Uniform Apology Act,” Uniform Law Conference of Canada, (Charlottetown, Prince Edward Island, September 9-13, 2007), 2.

[6] Texas Civil Practice & Remedies Code, Section 18.061, Communications of Sympathy.

[7] Texas Civil Practice & Remedies Code, Section 154.073, Confidentiality of Certain Records and Communications.

[8] Bruce W. Neckers, “The Art of the Apology,” Michigan Bar Journal (June, 2002), 11.

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