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Expanding The Benefits of An Apology!

by Phyllis Pollack
September 2017

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

On July 13, 2017, Hong Kong’s Legislative Council passed an Apology Law ( Apology Ordinance (Cap. 631)) which will take effect on December 1, 2017. (Kluwer Mediation Blog (“Kluwer”)).

The Apology Law is broad reaching in its definition and effect. Section 4 defines the meaning of “apology”:

(1) In this Ordinance, an apology made by a person in connection with a matter means an expression of the person’s regret, sympathy or benevolence in connection with the matter and includes, for example, an expression that the person is sorry about the matter.
(2) The expression may be oral, written or by conduct.
(3) The apology also includes any part of the expression that is-
     (a) an express or implied admission of the person’s fault or liability in connection with the matter; or
     (b) a statement of fact in connection with the matter.
(4) In this Ordinance, a reference to an apology made by a person includes an apology made on behalf of a person.

The next Section- Section 5- specifies the situations in which this Ordinance applies:

(1) This Ordinance applies to an apology made by a person on or after the commencement date of    this Ordinance in connection with the matter, regardless of whether –
   (a) the matter arose before, on or after that date; or
   (b) applicable proceedings concerning the matter began before, on or after that date. ….

“Applicable proceedings” include “judicial, arbitral, administrative, disciplinary and regulatory proceedings (whether or not conducted under an enactment)” as well as “other proceedings conducted under an enactment.” The term does NOT include criminal proceedings or certain other proceedings. (Apology Ordinance, Section 6)

In addition, Section 7 provides the effect of the apology by stating that an apology “…does not constitute an express or implied admission of …fault” nor can it be “taken into account in determining fault, liability or any other issue….”.

Section 8 provides that it is not admissible into evidence while Section 10 provides that an apology cannot be used by an insurer to “…void or otherwise affect any insurance cover[age], compensation or other form of benefit for any person….” in the disputed matter.

So- one asks, what does this have to do with the United States and more particularly, California?
In contrast, California’s “apology law” is much more circumspect. As Evidence Code Section 1160 proclaims:

 Evidence Code Section 1160.
(a) The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.
(b) For purposes of this section:
(1) “Accident” means an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party.
(2) “Benevolent gestures” means actions which convey a sense of compassion or commiseration emanating from humane impulses.
(3) “Family” means the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half brother, half sister, adopted children of parent, or spouse’s parents of an injured party.

The purpose of the Hong Kong Ordinance is to allow the use of an apology in a safe environment so that disputes will be amicably resolved rather than escalated into major litigation. (Apology Ordinance, Section 2.)

While the California statute seemingly may have the same purpose, it nowhere nearly accomplishes this broad and laudable goal. Given the budget cuts to the judiciary in California, and the increasing use of Alternative Dispute Resolution as a means to resolving disputes, perhaps the California Legislature should revisit this apology statute. Based on my own experience as a mediator, I can assuredly state that an apology goes a long way towards resolving a dispute. Perhaps if the law allowed for it in a “safe environment”, there would be a lot lot less litigation and a lot lot more amicable resolution of disputes.

…. Just something to think about.

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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