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I’m Sorry: The Power of Apology in Mediation

Apology in mediationAs children, we were taught by our parents and teachers to take responsibility for our actions and apologize if we damaged someone’s property or hurt someone’s feelings. See Professor Jonathan Cohen, Advising Clients to Apologize, 72 S. Cal. L. Rev. 1009 (1999). Yet, ironically, as adults — if we cause damage and then consult an attorney — the advice we are likely to get is that apologizing would be a mistake since a court may deem it an admission of fault. When it comes to apologies, where does one draw the line between morality and expediency?

The answer is nuanced. On the one hand, our ethical principles tell us that apologizing is the right thing to do. There are also psychological benefits. As Cohen explains, an apology reduces the guilt felt by the offender and relieves the injured party from “the corrosive effects of storing anger.” Concerning the latter, the 17th century Talmudic scholar Rabbi Shmuel Eidels wrote that like medicine cures a physical ailment, forgiveness is the medicine for the soul.

Apologies can also repair strained relationships, and in many cases might even prevent a lawsuit. A November 2018 National Law Review article by attorney Bonnie Ackerman of Wilson Elser on physician apologies in medical malpractice litigation cited a February 2018 study published in the Journal of Patient Safety and Risk Management finding that “hospital staff and doctors willing to discuss, apologize for and resolve adverse medical events through a ‘collaborative communication resolution program’ experienced a significant decrease in the filing of legal claims, defense costs, liability costs and time required to close cases . . . Events with medical errors were resolved by apology alone in 43% of the cases.”

On the other hand, there are risks associated with apologizing. In a July 2019 article on examining the value of apologies in the medical context, the author Leigh Page observed that apologizing without forethought can alert patients to an error they were not otherwise aware of and give them reason to sue. The article cited a February 2019 study on state “apology” statutes published in the Stanford Law Review, which turned conventional wisdom on its head and found that those laws do not only not lower the risk of surgical doctors being sued, but actually subject nonsurgical doctors to an increased risk of litigation. That is because those laws often distinguish between statements that express sympathy and those that admit fault, and many doctors – unaware of that distinction – apologize without sufficient training “on when to apologize and what to say when apologizing.” The “collaborative communication resolution programs” discussed in the November 2018 article cited above supply that crucial guidance.

Fortunately, mediators are uniquely situated to capitalize on the power of apologies without the attendant risks since all mediation communications are confidential. Indeed, as a profound expression of validation that conveys to the recipient “yes, I acknowledge that I hurt you, and I hope you’ll forgive me,” apologies have the capacity to dramatically alter the course of a mediation, moving from impasse to resolution in the blink of an eye.

Consider the following story recently shared on LinkedIn by Mediator Nelson Timken:

Yesterday at work, I was conferencing a lawsuit between a nephew and his uncle. The nephew was suing the uncle for some belongings he claimed the uncle had disposed of. There was obviously some bad blood and animosity between the members of the family that transcended the dispute at hand. Neither side wanted to settle the dispute. I asked them if they wanted to continue their relationship, whereupon the uncle told me that he had no desire to continue the relationship with his nephew after this. I quickly recalled something I had read about the “power of an apology,” and asked the uncle if he would be willing to continue their relationship if he got an apology. The nephew blurted out “I’m sorry.” The uncle said, “what did he say?” I said, “your nephew said he was sorry.” Whereupon the uncle said, “I’m sorry too.” The nephew began to cry, and the uncle got up and embraced him. “I love you, man,” the uncle said, his eyes also filling up with tears. They then proceeded to settle the case. This is an example of the power of an apology in action.

Apologies don’t just help family members reconcile. They can also work magic in a business dispute between unrelated parties. Mediator John Sturrock shares this war story:

Mr. A had a very substantial claim against a bank running into hundreds of thousands of pounds sterling, most of his life savings. When I asked him, early on, what he needed from the mediation day, he replied “I’d like them to apologise.” The bank’s advice was that it had done everything it could and that it had no legal liability. A familiar situation. However, the bank’s representatives found a way, authentically, to convey their deep regret that Mr. A had experienced losses. They said they would do everything they could to ensure it would not happen again.

Mr. A was very pleased with what was said. The matter settled for a modest sum overall. The Bank and Mr. A conducted the final stage of the negotiations themselves, with support from advisers. Both parties left the mediation process satisfied with the outcome.

Of course, an apology that comes across as rehearsed and insincere can backfire, and increase (rather than decrease) anger and resentment. But given the power of a sincere apology, both mediators and parties should remain attuned to the potential for an apology in every mediation, and if such potential is present, evaluate when and how the apology should be delivered to facilitate resolution.

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