From the Mediation Matters Blog of Steve Mehta.
A big question in trial for lawyers to consider is whether to apologize for their client’s “alleged” conduct. Many lawyers are reluctant to do so under the theory that it could lead to a greater chance of liability being imposed on them. Recent research sheds light on this issue.
According to researchers at George Mason University and Oklahoma State University apologizing to a jury may lead more favorable results. The results of the study will be available in a the journal Contemporary Accounting Research.
Assistant accounting professors Rick Warne of Mason and Robert Cornell of OSU found that apologizing can result in lower frequencies of negligence verdicts in cases when compared to a control group receiving no apology or remedial message. The researchers hypothesized that apologies allow the accused wrongdoer to express sorrow or regret about a situation without admitting guilt. Alternatively, a first-person justification allows the accused to indicate the appropriateness of decisions given the information available when decisions were made.
“We found that apologies reduce the jurors’ need to assign blame to the [wrongdoer] for any negative outcomes to the client,” says Warne. “It also appears that an apology “influences the jurors impression that the auditor’s actions were reasonable and in accordance with professional standards.”
The researchers conducted several versions of a mock trial involving a lawsuit against an auditor whose actions had negative consequences on a client. The researchers examined whether a defendant making an apology, offering a justification, utilizing both techniques or remaining silent led to the most favorable verdicts.
“We know victims often respond favorably to an apology, but our findings suggest that even unharmed jurors react in a similar manner,” says Cornell. “Offering an apology though is not synonymous with admitting guilt.”
The majority of states have some form of ‘apology law’ that prevents an apology from being used against a defendant as evidence in court in some setting or other. According to the researchers these laws encourage the use of apologies when disputes arise.
“Defense attorneys must consider several factors before having their client testify in court,” says Warne. “However, we believe that most innocent parties could benefit from utilizing the apology and justification strategies when legal conflicts arise.”
In my experience, apologies – and especially heartfelt apologies – can have a significant impact on resolving many emotional conflicts. Given that the mediation setting is confidential, it is very easy for people to make an apology during mediation because such statements will remain confidential for legal purposes but have the desired effect of helping to reduce tension and deescalate a conflict.
Given that there is mounting research as to the effectiveness of these types of apologies as well as the financial benefits, an apology should be something to consider in litigation context.
See also, financial impact of an apology
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