"I'm Sorry": The Power of Apology in Mediation

THE ELEMENTS OF APOLOGY:

Apology involves the acknowledgement of injury with an acceptance of responsibility, affect (felt regret or shame - the person must mean it), and vulnerability - the risking of an acknowledgement without excuses. It is repair work - work that is often necessary, but difficult.

Apology is a ritual exchange, where what is offered in exchange for the injury done is, in Tavuchis' phrase, "nothing, except a...speech expressing regret."

Aaron Lazare has best captured the ritual exchange of apology: "What makes an apology work is the exchange of shame and power between the offender and the offended."

APOLOGIES IN MEDIATION

Apology is central to mediation: mediation regularly involves disputes in which one party feels injured by the other. An apology is an act that is neither about problem-solving or negotiation. Rather, it is a form of ritual exchange where words are spoken that may enable closure. In the language of transformative mediation, apology represents an opportunity for acknowledgement that may transform relations. Most of us recognize its role in victim-offender mediation and community conferencing, but it can play an equally critical role in other forms of mediation, including employment and divorce mediation.

ASSISTING CLIENTS WITH APOLOGY: WHAT MAKES IT WORK?

People can authentically apologize in mediation, but they often need help in getting past the defensiveness and fear of blame that preclude apology. Apology can not be imposed. It is a moment of opportunity. Parties often need preparation and help with the words. An apology involves such vulnerability that often the only way it is safe enough is with the mediator's assistance in putting the apology in words.

Apology involves an exchange of power and shame. Apology is a form of non-coercive power-balancing enacted by parties in which the powerful offer their vulnerability and through recognition, the injured/humiliated are empowered.

APOLOGY AND THE ADVERSARIAL SYSTEM

Apology can be a critical element in the settlement of lawsuits. Many of us have been in mediations in which there is a palpable desire for - sometimes an explicit insistence on -apology from plaintiffs. Many of us have witnessed the enormous cost of missed opportunities for apology. The pairing of the law and the adversarial system, however, makes for a matrix antithetical to apology. The preoccupation of American jurisprudence with defending individual rights and fears of admitting culpability can function to preclude apology with its naked unqualified acknowledgement of responsibility. As Lon Fuller has noted, adjudication involves rational ordering of a complaint according to principle whereas apology is not an appeal to reason. The adversary system breeds defensiveness; apology requires vulnerability.

It is possible to have a legal system more supportive of apology. The legal system in Japan functions quite differently and there apology plays a major role as a social restorative mechanism.

MEDIATION, APOLOGY AND THE LAW

When attorneys are present in mediation it is generally far more difficult to hold open the space for apology, since attorneys are habituated to their role as "watchdog, guarding against their client's unwitting forfeiture of legal entitlements" (McEwan). This creates a wariness of apology which is a moment where a client relinquishes all justifications, excuses, and counter-claims and instead faces the other with moral transparency.

Apology and the adversarial system resemble David encountering Goliath: the one is loaded down with protective armor, the other comes seemingly defenseless. Many mediations are centrally about a damaged relationship. Trust has been broken. When offered with integrity and timing, an apology can be a critically important moment in mediation. An apology, when acknowledged, can restore trust. As Wagatsuma observes, "There are injuries that can only be repaired by an apology." The past is not erased, but the present is changed.

In divorce mediation an opportunity sometimes occurs for clients to acknowledge they have acted in ways that have created injury and they are sorry for the damage inflicted on their marriage and their spouse. The mediator can help people face damaged bonds and sort through what remains. With the marriage vow broken and trust betrayed, does anything remain? Is everything destroyed?

An apology is an opportunity to say, "Yes, there has been a terrible wound here, for which I am truly sorry. My intention is not to destroy you. I am ending a marriage, but I would like to close that door gently, not slam it shut."

BIBLIOGRAPHY:

Lazare, A. "Go Ahead, Say You're Sorry." Psychology Today, January/February 1995, 40-43, 76-78.

Levi, D. "The Role of Apology in Mediation." New York University Law Review. 72, (5), November 1997. 1165-1210.

Moore, D. B. "Shame, Forgiveness, and Juvenile Justice." Criminal Justice Ethics, Winter/Spring 1993.

Scheff, T. J., Bloody Revenge: Emotions, Nationalism, and War. Boulder: Westview Press, 1994.

Tavuchis, N. Mea Culpa: A Sociology of Apology and Reconciliation. Stanford, California: Stanford University Press, 1991.

Wagatsuma, H. and Rosett, A. "The Implications of Apology: Law and Culture in Japan and the United States." Law & Society Review, 1986, 20 (4), 461-498.

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Street	fairyland032002@yahoo.com      09/20/03
An apology
Some times an apology is worth more than money. When someone says they are sorry, that person or organization is aware there is a communication problem or a behaviorial problem from both parties involved. When an employer says they are an Equal Opportunity Employer they certainly need to stand up to that honor. And it sure is an honor to be Equal Opportunity. When an employee is told, "I think you have a problem do something about it." And the employee does something about that problem and this particular employee signed herself into a hospital that she trusted with all her heart. Upon signing herself in, she brought with her all her pain and anger that she knew was killing her and killing her chances for a career that she worked hard for. Having several out bursts of emotion and temper tantrums she made peace with her anger and she realized that for many years she was blamming a certain place for something they had no control over. She returned to work with good wishes from her doctor. When she returned to work she had a very good attitude but was greated with angry co-workers and a very angry boss. He and many of the co-workers put unnecessary pressure on her hoping she would walk out the door. She did not. She wanted her boss and the people of human resource to speak with her. To find that common ground, one that is so important which in most cases would stop any lawsuit. She was never approaced by anyone from H.R. or her boss. This particular employee was being ostericised (sp)and that in it's self is incredible pressure to endure. Then there was one day that this employee watched her boss loose his temper. She thought well he is human. However, in the art of role making and showing the power of example was he wrong. In this case, yes he was wrong. The employee that he was yelling at was in no way deserving of that behavior. On the other hand, he might have had a lot of pressure put upon him that day. So, that boss should apologize to that employee. The employee that returned from the hospital and was ignored lost her temper on day. It was as if she was alone and wanting and needing human resource to recognize her for doing what her boss told her to do. Go and get some help. She did and she faced a firing squard. She did what came natural to most people. She got mad, mad as hell. And because she got help and then got mad at human resource for being a big bulley she was fired for no good cause. She is still persuing her career inspite of the fallout from her former boss. And, if he could only know she would not sue him and she never had any plan to do so. She just wanted to work things out in a very adult manner, which for her never materialized because human resources failed to meet their obligation as an Equal Opportunity Employer. Isn't that sad. Add New Comment

Street	fairyland032002@yahoo.com      09/20/03
An apology
Some times an apology is worth more than money. When someone says they are sorry, that person or organization is aware there is a communication problem or a behaviorial problem from both parties involved. When an employer says they are an Equal Opportunity Employer they certainly need to stand up to that honor. And it sure is an honor to be Equal Opportunity. When an employee is told, "I think you have a problem do something about it." And the employee does something about that problem and this particular employee signed herself into a hospital that she trusted with all her heart. Upon signing herself in, she brought with her all her pain and anger that she knew was killing her and killing her chances for a career that she worked hard for. Having several out bursts of emotion and temper tantrums she made peace with her anger and she realized that for many years she was blamming a certain place for something they had no control over. She returned to work with good wishes from her doctor. When she returned to work she had a very good attitude but was greated with angry co-workers and a very angry boss. He and many of the co-workers put unnecessary pressure on her hoping she would walk out the door. She did not. She wanted her boss and the people of human resource to speak with her. To find that common ground, one that is so important which in most cases would stop any lawsuit. She was never approaced by anyone from H.R. or her boss. This particular employee was being ostericised (sp)and that in it's self is incredible pressure to endure. Then there was one day that this employee watched her boss loose his temper. She thought well he is human. However, in the art of role making and showing the power of example was he wrong. In this case, yes he was wrong. The employee that he was yelling at was in no way deserving of that behavior. On the other hand, he might have had a lot of pressure put upon him that day. So, that boss should apologize to that employee. The employee that returned from the hospital and was ignored lost her temper on day. It was as if she was alone and wanting and needing human resource to recognize her for doing what her boss told her to do. Go and get some help. She did and she faced a firing squard. She did what came natural to most people. She got mad, mad as hell. And because she got help and then got mad at human resource for being a big bulley she was fired for no good cause. She is still persuing her career inspite of the fallout from her former boss. And, if he could only know she would not sue him and she never had any plan to do so. She just wanted to work things out in a very adult manner, which for her never materialized because human resources failed to meet their obligation as an Equal Opportunity Employer. Isn't that sad. Add New Comment

Meredith ,   butler PA	04/08/02
Dear Mr. Schneider, My name is Meredith, and I was curious if there was a law in any state regarding apology? I am writing a bill for a school Youth and Government club and need some more usefull information on this topic. Thanks. Add New Comment

Michael Becker,   Westport Co	mediate@snet.net      04/24/01
Carl, thanks for organizing so logically what many of us knew intuitively. I have used the full version article when teaching law students at the University of Connecticut Law School mediation clinic, and would highly recommend it. Add New Comment

Clark ,   Miami Beach Fl	cfreshma@law.miami.edu      07/12/00
The article has a very useful message here. One bit of added perspective: a recent study of EEOC mediation shows that a signficant number of employment discrimination cases do involve an apology. This also raises a public policy question, however: is the public well served when someone offers an apology for discrimination rather than making the kind of monetary payment that may deter future discrimination? Indeed, is the individual receiving an apology well served to accept an apology in lieu of other more tangible goods? Add New Comment

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