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Non-Apology Apologies

by John Lande
August 2016

From the Indisputably blog

John Lande

The law generally doesn’t do much to promote apologies.  They aren’t included in the panoply of remedies that judges can impose on unwilling parties.  Even if courts could order parties to apologize, the apologies probably would be of the unsatisfying tell-your-sister-you’re-sorry variety.

Jonathan Cohen has written wonderful pieces on The Immorality of Denial, 79 Tul. L. Rev. 903 (2005) and The Culture of Legal Denial, 84 Neb. L. Rev. 247 (2005), describing how it has become “normal practice within our legal culture is for injurers to deny responsibility for harms they commit.”  When defendants settle lawsuits, they often include explicit language refusing to accept responsibility.

In our DR world, we appreciate the seemingly magical power of apologies to sometimes dissolve bitter conflicts, enable resolutions, and restore relationships.  Eric Galton and Lela Love collected many such stories in their wonderful book, Stories Mediators Tell.

It can be hard to give a good apology – and many people make a hash of it.  One of my favorite cartoons shows a couple with a woman who has a disgruntled expression on her face in response to the guy saying, “I thought it was a perfectly good apology especially considering that I didn’t do anything wrong.”

Donald J. Trump

This brings us to the subject of the “non-apology apology” in which people make statements that seem to be apologies but actually are evasions of responsibility.  It has become such a thing that there even is a Wikipedia entry for it.

Republican presidential candidate Donald J. Trump recently issued a classic non-apology apology in which he appeared to take responsibility for hurtful statements.  As described by theWashington Post:

“‘Sometimes in the heat of debate, and speaking on a multitude of issues, you don’t choose the right words or you say the wrong thing.  I have done that,’” Trump said, with a slight smile, during a campaign rally here.

“‘And believe it or not, I regret it.  I do regret it, particularly where it may have caused personal pain.  Too much is at stake for us to be consumed with these issues,’” he said.  “‘But one thing; I can promise you this: I will always tell you the truth.’”

Mr. Trump’s failure to identify the statements he was referring to or the people hurt undermined the credibility of his apology.  This was particularly perplexing considering the long list of his statements meriting apologies.

Ryan Lochte

Of course, many other people have given non-apology apologiesFor example, Olympic swimmer Ryan Lochte initially gave what seemed like an inadequate apology when he said, “I want to apologize for my behavior last weekend — for not being more careful and candid in how I described the events of that early morning,”

One columnist wrote that he “still doesn’t get it.  His so-called apology was a lame, crisis-crafted statement that showed zero sincerity and no awareness of his affront to Brazil and, if anything, only added to the insult by continuing to suggest he’s somehow this country’s victim.”

A later statement by Mr. Lochte – “I was immature, and I made a stupid mistake.” – seemed more sincere and an effort to take responsibility.  However, it may have been too late to satisfy some people, especially considering that he seemed to excuse his behavior because he was intoxicated and he seemed to backtrack on his apology.  “‘It’s how you want to make it look like,’ Lochte said.  ‘Whether you call it a robbery or whether you call it extortion or us just paying for the damages, we don’t know.  All we know is that there was a gun pointed in our direction and we were demanded to give money.’”

Nate Parker

Another recent situation in the news involves film director, producer, and actor Nate Parker who is attracting attention due to his new film,The Birth of a Nation.

In 1999, he was a wrestler for Penn State and was accused of gang-raping a student.  Purdue Professor Roxanne Gay wrote a very sensitive essay about how she reacted to Parker and his recent statement of responsibility.

As she described: “What happened in 1999 is a familiar story:  college athletes, alcohol, a vulnerable woman and allegations of sexual assault.  The unnamed woman pressed charges against Mr. Parker and Mr. Celestin, claiming she was drunk, unconscious and unable to consent to sex.”

. . .

“Mr. Parker was acquitted, based partly on testimony that he and the victim had previously had consensual sex.  Mr. Celestin was convicted of sexual assault and sentenced to prison, but the conviction was eventually overturned.  The victim, who sued Penn State because she said the university did not protect her from the harassment she endured after filing charges, received a settlement of $17,500.”

“Both Mr. Parker and Mr. Celestin now have families and successful careers.  They remain friends and collaborators.  The victim, well, she committed suicide in 2012 and left behind a young son.”

Prof. Gay writes, “Mr. Parker is being forced to publicly reckon with his past, and he is doing a lousy job.  I want to have empathy for him, but everything he says and does troubles me.  You see, what happened in 1999 was a ‘painful moment’ in his life.  Most of what he has to say about that ‘painful moment’ involves how he felt, how he was affected.”

Prof. Gay’s essay was written in response to an interview of Mr. Parker in Variety magazine.

He also released a statement in which he wrote that “I cannot – nor do I want to ignore the pain she endured during and following our trial.  While I maintain my legal innocence because the encounter was unambiguously consensual, there are things more important than the law.  There is morality;  no one who calls himself a man of faith should even be in that situation.  As a 36-year-old father of daughters and person of faith, I look back on that time as a teenager and can say without hesitation that I should have used more wisdom.”

“I look back on that time, my indignant attitude and my heartfelt mission to prove my innocence with eyes that are more wise with time.  I see now that I may not have shown enough empathy even as I fought to clear my name.  Empathy for the young woman and empathy for the seriousness of the situation I put myself and others in.”

Unfortunately, as Prof. Gay wrote, this is just one of many cases involving “college athletes, alcohol, a vulnerable woman and allegations of sexual assault.”  These cases are extremely difficult to analyze factually, legally, and morally.  People’s reactions to it – and Mr. Parker’s statement – probably are related to their reactions to this phenomenon generally, which prompts a variety of strong feelings.

I don’t have a good conclusion for this post other than to note that apologies are really important, some apologies are better than others, and people’s reactions to apologies vary based on the nature and severity of the wrongs, qualities of the apologies, and observers’ experiences and perspectives.

Read Part 2 here

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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