This article was first published by the Missouri Lawyers Weekly (April, 2000)
In February, I watched a trial involving a $38.00 gingerbread house. The plaintiff bought the house shortly before Christmas for his wife as a gift. He saw the house in the baker’s window and he chose it because it had a snowman positioned in front of the house. His wife, you see, collects snowmen. He paid for the house and he asked the salesclerk to wrap it for his pick-up later. He came the next day, found the house enclosed in a heavy box, stapled firmly shut. He took it home. He wrapped the box in Christmas paper. He wrote the little tag to his wife in a loving hand and he gently placed it under the tree. Christmas Day came. The wood fire burned warmly in the fireplace. The upholstered furniture cradled the family in warm and comforting pillows. His wife held the package on her lap, her holiday housecoat draped at her feet with just the tips of her slippers showing. She carefully began to unwrap the present. First the Christmas paper, then the staples, then the box lid, then tissue. Out it came to much expectation and oohing and aahing.
Yet, the Grinch had stolen Christmas. The gingerbread house was lovely. No candy piece amiss. But to the husband’s horror – there was no snowman. Instead, in front of the gingerbread house was a statue of a little girl!
The husband was a good and frequent customer of the baker. He often referred other people to the business. He toted the gingerbread house back to the baker expecting a quick resolution of the problem. “Please,” he said, “it has no snowman. I would like an exchange, a refund or a credit for the $38.00 I paid.” Sounds reasonable right? But instead, the disappointed husband heard: “I’m sorry Sir, but we cannot accept returns on seasonal items after the seasonal event. Why didn’t you bring it back before Christmas?” The husband explained: “Well it was stapled in a box and wrapped in paper under the tree. I never dreamed the snowman wouldn’t be on it! You can see we never undid the cellophane wrap!”
“Terribly sorry. We can’t make any exceptions. And anyway how do we know you ordered a snowman!?” The husband, half blind with rage, gathered up the box, the wrapped gingerbread house and the unwanted statue of the little girl. Out the door of the baker he went and into the door of the small claims court he came.
By golly, I’ve been wronged. It’s the principle of the thing! How can they treat me this way!
The judge took all this in and said: “One person will win. One person will lose. If you don’t like my ruling, you can appeal. All I can give you is a lump sum money judgment. If you want an apology or a replacement item or anything else, I do not have the power to give it to you.”
What could have happened outside the courtroom if these parties had begun talking to each other again? An apology? A promise to provide a new gingerbread house with a snowman this coming Christmas? A snowman as a replacement for the little girl? A credit? A refund? A year’s supply of croissants or oatmeal cookies? A renewed friendship? A restored referral source? How much business will those bakers lose over a $38.00 gingerbread house?
Mediation provides a forum in which forgiveness and apology play a critical role in reaching emotional resolution of the dispute. In The Dynamics of Conflict Resolution: A Practitioner’s Guide (Jossey-Bass 2000), Bernard Mayer says:
I have noticed that delivering an apology is usually more important to reaching closure than receiving one and forgiving is often more important than being forgiven. Both apologizing and forgiving, when genuinely offered, are acts of emotional resolution. In effect each is a way for people to put some part of the emotional aspects of the conflict behind them.…[T]he most powerful apologies or acts of forgiveness are those offered without any expectation of reciprocation….To be genuine and effective apologies must be unconditional.
Id. at 104.
Another author has described an apology as “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…a speech expressing regret. What makes an apology work is the exchange of shame and power between the offender and the offended.” C. Schneider, “’I’m Sorry:’ The Power of Apology in Mediation,” www.mediate.com/ articles/apology.cfm. See also S. Keeva, “Does Law Mean Never Having to Say You’re Sorry? Going to Trial Over a Case is Costly, Frustrating – and can Perhaps be Avoided with a Simple Apology, “ ABA Journal (December 1999).
There are cultural and legal barriers to making apologies. I have been watching John Wayne westerns for a week. I am studying the cultural messages we all received growing up watching these movies. In She Wore a Yellow Ribbon, a 1949 film directed by John Ford, Wayne plays the aging Captain Nathan Brittles. In the story, the Sioux Indians, under Sitting Bull’s leadership, have just massacred Custer’s army at Little Big Horn. The different Indian tribes are finding strength in numbers and they are collaborating to wipe the U.S. Calvary from the high desert of the West. Brittles is six days from retirement and still trying, reluctantly, to build the leadership skills of his young successors. Among his advice: “Never apologize. It’s a sign of weakness.” This advice, in each instance, is ignored, apologies are exchanged and the relationships between the younger officers made stronger.
As cultures go, we are actually a forgiving one. This attribute may reflect the influence of our Judeo-Christian tradition. In many western religions, a confession brings immediate absolution. And we are accustomed to apologies from our leaders. A search of the New York Times database for 1996 to the present reveals 162 stories in which the words “President Clinton and apology and Lewinsky” appear.
In China, however, apologies are complicated matters. They are rarely offered and rarely accepted. They must be delivered just so and with sufficient gravity. An apology requires a great loss of face. Unlike Clinton, who apologized on national TV, Chinese officials have never openly apologized for the excesses of the Cultural Revolution. In a town outside Beijing, Liu Qing, a former lawyer with a long interest in psychology, decided Chinese people needed help reducing the negative feelings that arose between them. He founded an apology company This company will send a person to apologize on your behalf for $2.50 per apology. The apologizers, all dressed in somber suits, will deliver gifts, make explanations and write letters. E. Rosenthal, “For a Fee, Chinese Company Will Beg Pardon for Anyone,” New York Times (Jan. 3, 2001).
The legal system can also provide barriers to apology. The rights-based adversary system of conflict resolution breeds defensiveness. Lawyers and clients fear that an admission of culpability can be used against them later in court. And for good reason. Only Massachusetts, Texas, Georgia and Vermont prohibit the expressions of sympathy or apology from being used as evidence in a later civil suit. M. Hansen, “No Hard Feelings: California Bill Would Let People Apologize After Accidents Without Setting Themselves up for Civil Suits,” ABA Journal (August 2000).
Mediation provides a confidential environment in which to apologize and forgive. Section 435.014 of the Missouri statutes provides: “Any communication relating to the subject matter of [the] dispute made during the resolution process by any participant… shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such proceedings, not otherwise discoverable or obtainable, shall be admissible as evidence or subject to discovery.” This statute, while general in nature, should give mediating parties the freedom to apologize fully without fear of possible legal repercussions.
In assessing your client’s interests and needs, how does apology fit in to the mix?
Republished with permission of CPR.Mediation of commercial disputes has risen significantly over the past decade. As the result of (i) multistep dispute resolution provisions in contracts; (ii) state and federal...By Bennett G. Picker