Jeff Kichaven offers some interesting observations regarding apology in litigation mediation (“Apology in Mediation: Sorry to Say, It’s Much Overrated ”). Some of his observations are accurate, but I offer that some miss the mark and could lead the reader to conclude that sincere apology has little place in mediation in general and litigation specifically.
I agree that apology is not always necessary. In litigation that is strictly interpretive of statute and where no one has received personal injury and where there is no ongoing relationship, apology often is not a consideration. However, in litigated or non-litigated cases where there is emotional or physical injury, or where there is a desire to continue a relationship, apology can have catalytic qualities.
Mr. Kichaven is correct that our current legal system penalizes apology as an admission of wrongdoing. There, apology is something to be exploited as an admission of guilt and a show of weakness, and that the best defense is a good offense. Therefore, apology equates to weakness. Consequently, cases that would settle for an apology are never offered the opportunity, for attorneys tell their clients not to offer any hint of apology. Kichaven also offers some excellent examples of apologies that stop short of admissions of responsibility. In effect, he argues that respondents should use these non-apologies to their own benefit, but without any responsibility to actually do anything.
Several years ago, I was asked by the plaintiff’s attorney to mediate a lawsuit filed under the Federal Whistleblower Act. The plaintiff had been fired from his job for reporting safety issues in the hazardous waste industry. I agreed to mediate, but the employer then refused. Three years later, I learned through a well-placed attorney that the employer had fought the matter for more almost three years before finally settling. The employer had spent in excess of $1,000,000 defending the case and more than that in the settlement. Do you know what the plaintiff wanted? He was willing to settle for getting back his job, back pay and benefits, and an apology from the company. He was even willing to sign a non-disclosure agreement. Instead, he got a lot of money, but the bitterness lingers.
In yet another case, a man harbors debilitating hatred 19 years after an incident because all he wanted was an apology, which was refused on the advice of counsel.
It need not be this way.
People Are Afraid to Apologize
In too many cases mediators aim only for settlement of the issues, believing that this will be the best that is possible when in many instances the clients are almost begging for recognition of their humanity or even reconciliation of the relationship. I have come to believe in the power of honest, sincere apology, for I have seen it break down seemingly insurmountable barriers to settlement and even lead far beyond mere settlement to forgiveness and reconciliation. I readily admit that what I will write here is something above what most mediators are trained to do, and also above what happens in most mediations. That does not lower the bar, however, but rather shows us possibilities far greater than most of us believe.
There are cases that are simply different perspectives on the facts and responsibilities where people sincerely believe that they did nothing wrong. However, research shows that people often do blame themselves for what has happened but are afraid to admit it because it will be used against them. They also fear embarrassment, public humiliation and becoming social and business pariahs.
I offer that the role of the mediator is to create a place where it is safe to apologize and that the mediator has the power to create that safety zone. This means requiring a written guarantee that the apology will not be used as a weapon against the apologizer. I require all participants to sign a very specific agreement that no one can disclose anything said or offered during the session without the prior written agreement of everyone, including the mediator, nor use what is said or learned as evidence. If anyone refuses to sign this agreement, I do not mediate. I as the mediator have the power to control how information is disclosed and I believe that exercising this particular power is one of the my stronger tools.
The Power of Apology
Mr. Kichaven states that “apologies are not that useful anyway”. His reason is that they are not believed, ergo, why bother? Apologies are often initially rebuffed, but we need to explore the rebuff for what it truly represents. So what if the plaintiff’s attorney says they do not believe the apology is sincere? One role of the advocate is to posture to get as much as possible for their client. The rebuff may be nothing more than a tactic to show how strongly they believe in their position and the “rightness” of their cause. It may be just an attempt to explore what tangibles may become attached to the apology. That is just Negotiations 101. I see this rebuff as just another opportunity to delve more deeply into interests rather than staying stuck in positions. The fact that they say “no” does not mean it is a permanent “no”.
The answer may be that the apology did not go far enough.
About six years ago, I worked with two physicians who headed a very large medical practice that was in danger of disintegration. I will leave the identifying details out, but it became clear as we progressed that each had been deeply hurt by the actions of the other. That hurt translated into anger and fear, which led to escalating responses. In the safe place of mediation, they each became aware of how deeply their actions had hurt the other, and were horrified. Both were very moral, ethical people, but in the crush of conflict they had acted in hurtful, even frightening ways to each other. Once they began to understand the devastating impact of their actions, they both began to offer full apologies and actually fell weeping into each other’s arms. (They do not teach you how to deal with that one in mediator school, do they?) We eventually reached a written agreement that focused on communication practices for the future, and they left.
I saw one of those physicians in August of this year. They had followed the communication protocols we established until they became habit, and still follow them. The practice has expanded and physicians have been added. They attribute it all to my making a safe place for them to talk, listen, understand, and apologize.
The problem may be that we each have a different concept of what constitutes a “full apology”, and we each have different needs that must be met before we can accept the apology and move on with our lives.
I went to South Africa last November as part of my doctoral research into forgiveness. It is one thing to read the transcripts of the victim and amnesty hearings of the South African Truth and Reconciliation Commission, but something altogether different to sit down with both victims and perpetrators and listen to their stories. I saw the scars on victims and the haunting pain in their eyes as they told their stories, but I also saw a deep peace in those who had found the way to forgiveness. Surprisingly, I saw the exact same feelings and emotional scars in a man granted amnesty for a murder and two bombings. I listened, I asked questions, and a pattern seemed to emerge. On returning home and burying myself in the empirical literature, I saw the patterns I first became aware of in South Africa replicated in various studies.
It seems that apology can be construed as not a single act but a continuum of acts on the part of the perpetrator. People respond differently based on their emotional makeup and the damage done. What is sufficient for one is insufficient for another.
The lowest level of apology is simply a confession where the perpetrator acknowledges what he or she did. Confession is an act of ownership for the deed and acknowledgement of the damage done. There is no expression of remorse. In other words, the victim hears the truth from the one who did the act. The simple and unadorned “I did it” stage is where the perpetrator takes ownership. Confession is sufficient for some, but not many.
The next level of apology integrates confession with expressions of remorse. Here the perpetrator acknowledges the act and the damage, and shows sincere regret through words and body language. The showing of remorse acknowledges that the act itself was wrong, damaging and painful, and the perpetrator regrets the act and the impact on the victim. This is the “I did it and I’m sorry” stage. Many more people will accept this apology than simple confession.
The third level of apology incorporates the first two and adds a repentance phase where the perpetrator states how this has affected him/her and changed him/her to lead a better life. This is the “I did it, I’m sorry, it will never happen again” stage. This stage must often be accompanied by visible, tangible proof of changed ways. Again, this form of apology is powerful enough to be accepted by a large number of people.
The strongest level of apology adds “justice” to the equation. In essence, here the perpetrator adds an open-ended offer of “what can I do to make this right?” This is where mediator creativity is paramount, for justice is a slippery issue. Justice for one is injustice for another. Here is where interests truly come to the fore. In one South African case, justice occurred when a black woman “adopted” the white murderer of her husband and son at his amnesty hearing before the TRC (think about the many implications of this before you react). The white police officer fainted on hearing her make this request.
Yes, there are cases where apology in any form will never happen, and some where it may not even be appropriate. It depends on what we are trying to accomplish through the mediation itself, which is dictated by the needs and desires of the clients. Are we looking for a settlement to a dispute where the parties will go their separate ways and never again interact? Then apology may not occur. But, if we are looking at a wounded relationship in need of healing, then apology appears to be the gateway.
Chip Rose's parents had a lot of conflict in their relationship so he was very comfortable as a divorce litigator. His family life prepared him to deal with conflict.By Chip Rose