Apologies in Mediation

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Few issues evoke more passionate responses from mediation participants than whether a mere apology should be offered. One line of thinking is that an apology signals weakness, or worse, represents an admission of wrongdoing. To avoid that risk, an apology should never be given. Another approach is that an apology acknowledges that the other side has confronted challenges or suffering. With this recognition, the parties can begin to move beyond those circumstances and work toward a resolution. Each position can be defended rationally and reasonably. Just as the mediation process is flexible, mediation practitioners should remain open-minded to the role and power of an apology.

Years ago, as in-house counsel in charge of litigation, I served on a panel which included the attorney responsible for global litigation at a Fortune 100 company. When the topic of an apology arose, my colleague opined that she has never given an apology to an adversary in mediation and instructed every attorney on her staff to never apologize. This attorney advised that the apology would likely be misconstrued by the opponent as an admission of liability. The adversary would then “dig in” on extreme settlement positions grounded in the position that wrongdoing has been conceded with compensation then surely to follow. The underlying litigation process is adversarial with that dynamic not lost in mediation. No advantage was ever to be freely given to an opponent.

My view was that an apology remained an important resource to assist in various mediation settings, especially cases involving, but not limited to, personal injury and employment claims. An apology, carefully timed and certainly not qualified, illustrates an understanding of the position of the other party. I need not agree with the positions being advanced by the opponent, but the apology itself acknowledges that the other side has faced difficulties. Moreover, every apology offered to every adversary cost nothing.

Nationally renowned therapist, Beverly Engel, described the concept of apology as:

“Apology is not just a social nicety. It is an important ritual, a way of showing respect and empathy for the wronged person. It is also a way of acknowledging an act that, if otherwise left unnoticed, might compromise the relationship. Apology has the ability to disarm others of their anger and to prevent further misunderstandings. While an apology cannot undo harmful past actions, if done sincerely and effectively, it can undo the negative effects of those actions.”

The following examples are taken from mediations in which I served as the company representative where I offered an apology. First, a plaintiff-truck operator suffered serious injuries while he assisted in unloading his truck at a job site. Multiple defendants included the truck manufacturer, equipment manufacturer of material being hauled, and job site contractor/operator. At a joint session in mediation, plaintiff’s counsel presented the theories against all and counsel for each defendant explained that his client could not be at fault. Before breaking to individual sessions, I apologized to the plaintiff for suffering such traumatic injuries. No one expects to go through all he endured and I offered my sympathies. In the first individual session with the mediator, the mediator advised that the apology “took the air out of the sails” of the plaintiff with the plaintiff now viewing my client as least culpable among the defendants (“disarm others of their anger”).

Second, in a commercial dispute, plaintiff-company served as an agent. Unfortunately, the plaintiff was a small business which essentially folded when the fairly young founder suddenly died. His wife addressed all wrap-up issues for the agency. In this contract dispute, at mediation, I offered an apology to the wife for her loss and the position in which she unexpectedly found herself. I could not begin to appreciate all she must have gone through and must continue to address. In private session, the mediator explained that the apology humanized a previously faceless corporate entity (“showing respect”) and provided the basis to quickly move to closure.

These apologies provided the breakthroughs which fostered settlement. Neither apology addressed the merits. Neither apology related to the legal claims or disputes. Both apologies personalized or humanized the mediation process.

But what if the former view is accurate and that one party takes an apology as admission of responsibility. What are the consequences in mediation? Foremost, the mediator as a professional listener should pick up on any apology of circumstances as not any legal admission. The mediator should be able to explain that dynamic to the participant, if necessary. The same message can be relayed through the party who offered the apology if the intent was not correctly perceived. Perhaps most fundamentally, the offers and proposals will clearly establish perceived case worth as the negotiation process plays out. At most, an apology taken as an admission of responsibility should cause but a bump in the mediation road and not serve to undermine the entire the process.

An apology is a potentially powerful resource for mediation participants. It may not be necessary or effective in every situation. Nonetheless, the apology should remain readily available in the “tool box” of each practitioner.

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