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Mediation Lessons From the Talmud: The Components of an Effective Apology

Apology in mediationIn this latest post exploring mediation lessons from the Talmud, we discuss the components of an effective apology (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy).

The Jewish New Year is four days away. The Talmudic Sages designated this time of the year in the Jewish calendar for reflection and introspection, encouraging individuals to carefully scrutinize their behaviors, character traits, and relationships, and resolve to change for the better in the coming year.

To assist with this process, the medieval scholar Maimonides identifies the following four steps for an individual wishing to repent from a specific transgression:

  1. acknowledge the misdeed;
  2. cease commission of the misdeed;
  3. feel regret for the misdeed; and
  4. resolve not to commit the misdeed again in the future.

Interestingly, Maimonides’ formula finds a modern counterpart in research concerning optimal disclosure and resolution of medical errors. In 2003, a team of researchers published a study in JAMA entitled “Patients and Physicians’ Attitudes Regarding the Disclosure of Medical Errors,” reporting the results of focus groups that examined the attitudes of patients and physicians towards disclosure and resolution of medical errors.

The study shares that, concerning medical errors that caused harm, patients “wanted to know what happened, [and] the implications of the error for their health.” But beyond that, “patients also wanted to know that the practitioner and institution regret what happened, that they have learned from the error, and that they have plans for preventing similar errors in the future.” Precisely the same components that Maimonides prescribed.

As one patient explained:

You know, you may have dodged a bullet; you may not. Who knows? But, hopefully, they will learn from that mistake and that mistake won’t be repeated again.

These findings have since been incorporated by the federal government’s Agency for Healthcare Research and Quality (AHRQ) into its online “CANDOR” toolkit for healthcare institutions looking to implement communication and resolution programs to more proactively handle disclosure and resolution of adverse medical events.

The Disclosure Checklist included with the toolkit advises staff involved in disclosure communications to not only explain what happened and the potential consequence for the patient, but also to apologize “for the adverse event in a sincere manner,” and upon completion of an event investigation and analysis, to tell the patient and their family (1) “what should have happened,” and (2) “what will done differently to prevent a similar event from happening to another patient” in the future.

AHRQ further suggests that institutions consider involving patients and their families in the process of determining any protocol changes needed to prevent recurrence of the error that led to harm.

These apology “best practices” advocated by AHRQ, and other organizations like The Collaborative for Accountability and Improvement (which advocates for implementation of communication and resolution programs), can be employed in mediations addressing disputes in other contexts.

Illustrating the point is an anecdote we’ve previously shared concerning a mediation handled by John Sturrock involving a substantial claim against a bank:

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.

In sum, mediators should always remain alert to the opportunity to use an apology to facilitate resolution. But not just a simple “I’m Sorry.” Instead, the apology itself should be accompanied by a discussion of the steps that will be taken to ensure that the same harm does not happen again.

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