What It Means To Be Sorry: The Power Of Apology In Mediation

First published in the Mediation Quarterly, Vol. 17, Number 3 (Spring 2000)

The importance of apology as the acknowledgement of injury
is familiar to some forms of mediation, including victim-offender mediation,
but has been much less understood in divorce mediation. The act of apology
represents one of the core reparative opportunities in damaged relations.
But it’s not easy. This article will describe the opportunity that apology
presents, the difficulty we have in seizing that opportunity, and the role
that third parties can have in inviting apology. It will identify: 1) what
is involved in a genuine apology, identifying the three essential components
of apology; 2) the place of apologies in mediation including the recognition
of apology as an acknowledgement of injury and the identification of how
to assist clients in offering an apology; and 3) the relation of apology
to the adversarial system.



Introduction



Apologies differ. Compare the following:



Rev. John Plummer was a pilot in Vietnam who called for an air strike on
the village of Trang Bang. Twice, before acting, he was assured there were
no civilians in the area. Later, he saw the Pulitzer prize-winning photo
of nine-year-old Phan Thi Kim Phuc running from Trang Bang naked and horribly
burned by napalm, and was tortured by “the realization that it was I who
was responsible for her injuries.”



Years of torment ensued as he silently endured his guilt, finding no way
to express his remorse. Then he saw a story that the girl was living in
Toronto and would attend a Veterans Day observance at the Vietnam Veterans
Memorial in Washington. He felt compelled to see her. Upon hearing what
had happened to her family, he broke down saying over and over again: “I’m
sorry….I’m so sorry…. I’m sorry” (Purdue, 1997 p. 2).



President Richard Nixon in his resignation speech said, “I regret deeply
any injuries that may have been done in the course of events that have led
to this decision. I would say only that if some of my judgments were wrong,
and some were wrong, they were made in what I believed at the time to be
in the best interest of the nation.”1



Do each of the above examples represent an apology? Why? Why not? Is one
more effective than the other? How can we tell? Just what exactly is an
apology?



I. WHAT IS AN APOLOGY?



Originally, the Oxford English Dictionary (OED) tells us “apology” meant
a defense, a justification, an excuse. Its modern usage has shifted to mean
“to acknowledge and express regret for a fault without defense.” This modern
definition captures the core elements of apology: a) acknowledgment, b)
affect, and c) vulnerability.



What are the Elements of Apology?



a). Acknowledgment:

Jeffrie Murphy (Murphy and Hampton, 1988, p. 28) speaks of the role of ritual
in apology. Often, when an apology is called for someone has attempted to
degrade or insult the other; to bring them low. “As a result, we in a real
sense lose face when done a moral injury…But our moral relations provide
for a ritual whereby the wrongdoer can symbolically bring himself low –
in other words, the humbling ritual of apology, the language of which
is often that of begging for forgiveness.”



There is a “ritual” of apology. As the OED says, there must be an acknowledgment
– a recognition – of an injury that has damaged the bonds between the offending
and offended parties. The offense has to qualify as a genuine injury – one
that has involved some transgression of a moral or relational norm that
has both damaged the offender’s social bonds and called into question his/her
membership in some community. Tavuchis (1991, p. 13) calls this injury “an
act that cannot be undone, but cannot go unnoticed.”



In turn the offending party must personally be accountable for it. This
can’t be a Marv Alpert “I’m sorry if she felt she was harmed” passing stab.
It is not being sorry that she is the sort of person who feels that way.
Rather, it is acknowledging my role as the offending party in inflicting
injury. I have no excuse for what I did, yet it was indeed my action.




Contrast this with Nixon’s classic non-apology. In one fell swoop he withheld
any acknowledgment that he was responsible for any specific wrongs,
hedged on whether there even were any wrongs, and skipped over any
direct responsibility for the harm that had been done.



b). Affect:

In order to truly accept responsibility, the offending party must also be
visibly affected personally by what s/he has done. I am troubled
by it. Scholars who have tried to parse this experience variously name that
sense as “regret” and “shame.”< SUP> Whichever the affect, the feeling
has to be there! Nothing more offended commentators about President Clinton’s
“apology” than its lack of felt regret. As Mary McGrory (1998 p. A3) said
about Americans listening to it, “Lying and adultery they could handle,
but not being sorry, especially after you’re caught and cornered,
is unacceptable
.”2



It is, of course, possible to be over the top with this. Ted Turner offered
what one observer called “the mother of all mea culpas” to television
critics after his Cable News Network (CNN) retracted a report that the United
States military had used lethal nerve gas in Laos that targeted United States
defectors. “I couldn’t hurt any more if I was bleeding,” said Turner. “He
went on,” said Peter Boyer, “to say that his humiliation was so complete,
his mortification so deeply felt, that no other sorrow he’d known in his
fifty-nine years – the suicide of his father, the breakup of his first two
marriages, the 1996 World Series defeat of the Braves by the Yankees – compared
with what he felt now. What had happened at CNN was, indeed, ‘probably the
greatest catastrophe of my life.'” (Boyer, p. 28).



c). Vulnerability:

Finally, an apology is offered without defense. A key aspect of apology
is the vulnerability involved. An effective apology may be accepted,
but as Erving Goffman (1971) taught so well, an apology may be offered,
forgiveness may be begged for, yet it may be refused. The offender may have
owned up to the wrong inflicted, but this does not guarantee that the offended
party will accept the apology. Instead, the offended party can ignore or
punish the offender for the wrong done. The offended person may feel that
the offense, although acknowledged, is so incalculable — so enormous —
that it is simply “unforgivable.” Martha Minow notes that “Albert Speer,
the only Nazi leader at Nuremberg to admit his guilt, also wrote, ‘No apologies
are possible.'” (Minow, p. 116).



The offending party is placed in a potentially vulnerable state in offering
the apology knowing that the chance exists that it may be refused. More
than anything else, it is vulnerability that colors apology. Indeed, many
of us know well the moment in relationships when the other party has been
offended by something and we weigh whether we will attempt to repair it.
We know that attempting to restore the relation will take effort. It won’t
be easy. Is it worth it? We all have debated whether the relation was important
enough to us to bother. It is not only effort, but exposure
we are weighing. If this doesn’t work, things may be worse.



The Exchange of Shame and Power



Where a serious injury has been done, an offer of reparations may accompany
the apology. It is crucial, though, that the person apologizing recognize
that there is truly nothing s/he can offer tangibly that will suffice for
the damage done. Nic Tavuchis (1991, p. 33) pinpoints the paradox of apology:
“an apology, no matter how sincere or effective, does not and cannot undo
what has been done. And yet, in a mysterious way and according to its own
logic, this is precisely what it manages to do.” “An apology is inevitably
inadequate” (Minow, 1998, p. 114). It is a ritual exchange. “/W/hat, we
may ask, is offered in exchange? Curiously, nothing, except a…speech
expressing regret.” Thus, the powerful formula of Aaron Lazare (1995, p.
42, italics added):


“What makes an
apology work is the exchange of shame and power between the offender
and the offended.”




Apology thus also involves a role-reversal:
the person apologizing relinquishes power and puts himself at the mercy
of the offended party who may or may not credit the apology. This
dynamic is also much in evidence in what has become known as Family Group
Conferences or community conferences
that have developed in Australia
and New Zealand. Youthful offenders who have confessed to a crime agree
to meet in a group with the victim and his/her relatives and friends. As
David Moore (1993, p. 6) says, “the act of apology is clearly a central
part of the process that occurs.” In this setting the offender submits to
the power of the group and thereby helps remove shame from the victim by
taking it on himself.



The empowerment that occurs here is not some ‘power-balancing’ that the
mediator manipulates. The ritual exchange involves a moral rebalancing
offered by the offender. “The apology reminds the wrongdoer of community
norms because the apology admits to violating them. By retelling the wrong
and seeking acceptance, the apologizer assumes a position of vulnerability
before not only the victims but also the larger community of literal and
figurative witnesses” (Minow, 1998, p. 114).



Restitution/Reparations



For some observers other elements must also be present for a “true” apology.
There must be a plea to repair the relation; the offending party must mean
it. To demonstrate this some require only that the offending party genuinely
appears sorry. Others require a clear indication that the situation
will not happen again. Still others require the offending party to make
some attempt at restitution. A casual “sorry” to a store owner after
dropping and breaking a glass vase won’t cut it. Damages are owed. Or, as
Bishop Desmond Tutu says, “If you take my pen and say you are sorry, but
don’t give me the pen back, nothing has happened.”



There are others who require some change in behavior. John Hope Franklin,
the black historian, discussing the appropriateness of an apology for slavery
observes (1997, p. 61), “You can tell me you’re sorry, but it won’t make
me feel any better, it won’t get me a better situation in life, a better
job, an extra month in school.”



Although restitution or changed behavior are often indispensable components
of an acceptable apology, the author believes they are not essential elements
of an apology per se. Many times in apology the offending party faces
the fact that nothing can be done to right the wrong. The past cannot be
erased: the damage is done and cannot be undone. Here, the offender can
only pray that the offended may find the grace to forgive, but not because
the offender has found some equivalence to make up for the injury.



Repair Work



Apology is repair work. As Wagatsuma and Rosett (1986 p. 487) nicely
put it, “while there are some injuries that cannot be repaired just by saying
you are sorry, there are others that can only be repaired by an apology.”
This is the power of apology – indeed, sometimes its necessity – that it
is the reparative mechanism available when relations have encountered something
that cannot be fixed, but which also cannot be ignored (Tavuchis, 1991,
p.34).



And repair work is difficult. Need trousers cuffed? No problem. But repair
a torn pair of pants? You need to be a tailor.



Wash dishes? Sure. Repair broken china? A lot more delicate. And the work
of apology is both more difficult and more delicate.





II. APOLOGIES IN MEDIATION




Apology is an Acknowledgment



Mediation has long been viewed as “an alternative form of dispute resolution.”
And “dispute resolution” does capture the nature of much mediation. So regarded,
mediation is a form of problem-solving. There is then a clear end-point
to mediation and it is to achieve a settlement.



Apology, however, is clearly not about problem-solving. Nor is it about
negotiating. It is, rather, a form of ritual exchange where words
are spoken that may enable closure. An apology represents more than an occasional
event in mediation. It is embedded in the very nature of the process. Mediation,
after all, is frequently about disputes in which at least one party feels
injured by the other. Along with negotiations over the facts of the
case, demands for compensation, and denunciations of the other side, there
is often a felt need for some acknowledgment of harm done, a need for some
acceptance of personal responsibility for the injury inflicted. In short,
an apology.?



Assisting Clients with Apology



Can people authentically apologize in mediation? Yes, but in the author’s
experience, many people need some assistance. People often need to get past
the defensiveness and fear of blame that preclude apology. The divorce mediation
case of Alice and Brad offers an example.



Alice and Brad



Alice and Brad disagreed about the support Brad would pay for their child.
In earlier years both Alice and Brad had held good jobs. As their lives
unravelled, however, Alice found herself having to borrow money to make
ends meet and wanted $700 a month in support from Brad. Brad had also lost
his job and found himself working in a local Wal-Mart earning less than
$200 a week as a “stock-boy.” When Alice and Brad engaged in the mediation
budgeting process, it became clear that Brad needed $1900 a month just to
get by, let alone satisfy what Alice wanted. When asked what seemed “fair,”
Alice, after looking at the numbers on the flip board said, “Well, if you
just look at that, it seems fair, but…,” she trailed off.



The mediator responded: “It seems like there are other considerations for
you,” “Yes,” Alice said. “He left the marriage. I am trying to ignore that,
but none of this would have happened if he hadn’t left. He had the affair.
He acknowledges it himself. I thought we had a partnership: I supported
his three kids from his first marriage and now that that’s done, he takes
off. (Fighting off tears) I feel like a maid!”?



“So you feel there should be some compensation?” asked the mediator.



“Yes!”exclaimed Alice.



The mediator, meeting separately with Brad, asked “Do you have a response
to Alice’s comments?”



Brad’s first responses were defensive. The mediator continued: “It seems
important to the process that these concerns be spoken. Do you think you
could acknowledge her feelings?”



Brad responded: “What that means is that I give her more money?”



“No, not necessarily,” the mediator said. “But it seems like when her feelings
aren’t acknowledged, it keeps intruding on the financial decisions. The
personal issues have no other way to be raised. My experience is that it
makes a genuine difference if you can acknowledge how each other feels.
I hear Alice not blaming, but saying, ‘I thought we had a partnership. Your
leaving, after I supported your kids, feels like I’m being used. Your decision
has caused damage – to both of us and our daughter.’ It feels unfair to
her.”



“Look,” he blurted out, “we were fine, and I had an affair. I screwed up!
But I also feel like I gave her all my money for years.”



“So it sounds like you have a concern too. You feel like Alice hasn’t acknowledged
all you did. You did screw up, but there was more to your marriage than
how it ended.” “Yes.”



When the parties were brought together again, the mediator announced that
Brad had something to say.?



“I did the best I could…” he started defensively. Then, he said, “I screwed
up. … (pause) I’m sorry.”



Alice was near tears.



Brad: “I also did what I could.”



The mediator turned to Alice: “I hear Brad also saying, it is important
for him that his efforts are acknowledged.”



Alice quickly threw off: “I did that. A couple of years ago. I said. ‘I
thought we were doing okay.'”



The mediator said, “I think we are talking about right now, not the past.
You may have tried to say it; I don’t think Brad heard it.”



Alice: “I think you did the best you were capable of…”



“And is there a thank you for that part of it?” the mediator queried.

Alice (paused, then a smile) “Yes, thank you.”



Both were in tears. The mediator commented: “I hear that this is not anything
you wanted, a divorce. It has changed things. Brad, you acknowledge that
you screwed up and it has hurt you, Alice, and caused damage. You’re sorry
for that. But also that both of you put a lot of yourselves into this marriage
and the acknowledgment of that is important. Many people aren’t able to
do that.”



The moment quickly passed, but the following week Brad brought in the documents
he had not produced until this point. The outstanding issues, including
support, were soon resolved.?



How It Is Done



Several things are worth noting about this apology in mediation. Alice and
Brad needed help to get to this apology. It was not imposed; it was
offered. But Brad and Alice could not get past either their blame or their
defensiveness by themselves. A critical step in the process was the caucus.
Parties often need preparation before they are ready to offer an
apology. Finally, the parties needed help with the words. There is
a piece of back-leading here on the part of the mediator, but the parties
won’t go along with this if they are not ready. An apology involves such
vulnerability that it is safer – often, the only way it is safe enough
– if the mediator puts the apology in words and parties simply indicate
their assent.



A powerful example of the outcome of assisting a party to apologize occurred
at the hearings of the Truth and Reconciliation Commission in South Africa.
After three dozen witnesses had testified over nine days about murders,
assaults and abductions associated with Winnie Madikizela-Mandela and her
protection squad, Madikizela-Mandela herself finally testified. But her
testimony was combative, denying even the most minor allegations against
her as “fabrications” and labeling the testimony of witnesses as “lies.”




Lynne Duke, reporting on the hearing (1997, A1, 48), observed,


Madikizela-Mandela,
63, offered no hand of reconciliation to assembled victims of her protection
force – until Archbishop Desmond Tutu, the truth commission chairman,
begged her to do so. Invoking a historic bond of the Mandela and Tutu
family names, Tutu said that something in Madikizela-Mandela’s once-great
life had gone “horribly, badly wrong. I beg you, I beg you, I beg you.
Please. You are a great person. You don’t know how your greatness would
be enhanced if you said, ‘Sorry.'”



Luke reports that
silence spread through
the packed hall. After a long pause Madikizela-Mandela finally responded.
She apologized to the families of her club’s most brutally slain victims….:
‘I am saying it is true: Things went horribly wrong.’ Madikizela-Mandela
said, the sting of the day-long hearings absent from her voice. ‘For that
I am deeply sorry.'”



Here we see the great skill required
for a third party to step in and assist in birthing an apology. The risks
were huge, the stakes high, the vulnerability enormous. Yet, Tutu managed
in the midst of very powerful group pressure to block it all out and make
a deeply personal appeal that did not make Madikizela-Mandela feel trapped
or coerced. It allowed her to save face.



Apology as Power-Balancing



We speak much in mediation about power-balancing. Often, however,
our solutions tend toward heavy-handed techniques: controlling the powerful,
limiting their dominance in the session, doing “reality” confrontations,
threatening the disasters that the alternative of a trial would bring, etc.
The example that follows, though, is an instance of power-balancing that
parties themselves achieved. The powerful offer their vulnerability.
Through recognition, the humiliated are empowered.?



Gary Geiger and Wayne Blanchard



An extraordinary example of such power-balancing is the story of Gary Geiger,
a young man who was shot at point-blank range during a robbery at a motel
in New York. The man who shot him, a 21-year-old named Wayne Blanchard,
was later captured. Blanchard was sentenced to 12-25 years in prison. Gary
was not killed, but he was severely wounded and traumatized. Recurrent nightmares,
a massive dose of post-traumatic stress, and the loss of his job all followed.



After years of watching his life disintegrate Gary finally decided the only
possible way to reverse his situation was to confront his attacker. Contacted
by Dr. Tom Christian through a Victim-Offender Mediation program within
the New York State penal system, Gary went to the New York prison where
Wayne Blanchard was incarcerated and met him face-to-face in a mediation.




The encounter became part of a TV show, “Confronting Evil.” In it Gary at
one point with exquisite politeness asks Wayne: “Why, if you can possibly
help me, did the robbery get so violent?….Can you tell me, please, why
you shot me?” Elsewhere, Gary in an amazing exchange says: “I know you’ve
lost a lot. But I lost quite a lot too. The first phase was nightmares.
I couldn’t sleep. I’d start shaking. I wondered, am I always going to be
like this?”?



Visibly moved when directly confronted with the damage he caused, the convict,
Wayne, responds: “I’m really truly sorry for what happened in that motel
that night… I’m not only sorry for the pain you feel but what your family
had to go through that brought your life to what it is now. I have a lot
of pain in me, too. I haven’t had a chance to live…because of the stupid
things I did… I’m sorry,…I really am.”



“I’m glad that you’re sorry,” adds Gary.



The exchange of shame and power between the offender and the offended is
a dramatically powerful encounter. Gary approaches the table with years
of fear, powerlessness, and trauma. Wayne, who had terrorized his victim,
offers instead his vulnerability and apologizes.



Several key elements of apology are visible here. This clearly was a ritual
exchange. Isolated and out of context, the speech here is formal to the
point of being rather weird: Gary: “I’m glad that you’re sorry.” Or again,
“Can you tell me, please, why you shot me?” “Please“? It is a humbling
ritual which allows “the wrongdoer /to/ symbolically bring himself low,”
pleading for an opportunity to make things right with the victim. “If there
was something I could say or do that would help you, I’d gladly do it.”




And it raises up the victim. Fascinatingly, Gary is empowered in this exchange.
Before the conversation Gary says that for years he had “thought the offender
was a monster,” a being whom he had fantasized as horribly powerful. The
end of this ritual of apology has Gary shaking off his shame and paralysis
and identifying in a different way with the power Wayne held over him: “The
last time you and I met you extended your hand to me in anger. Now, I want
to extend my hand to you as a sign of healing for both of us.” Here
we see both sides of what transformative mediation talks about: both parties
have been empowered and they have gained new understanding
of each other. ?



We have said parties need help to have such an exchange. In the Gary-Wayne
exchange the mediator began by encouraging both parties to join in a ritual
dance. He invited the two men to speak as equals: “I want you two to talk
to each other. This is your process. Look at each other. Talk like two human
beings, man to man.” In other words, not as jailed and free, not as victim
and perpetrator. Meet on a level playing field, man to man!”



They do. Each man has one kind of power over the other. Wayne has the power
of fear, of physical violence. Gary has both moral power – he is the victim
– and the power of freedom – he can walk out of the prison after this conversation.
Yet Gary relinquishes his power and identifies with the shame of Wayne’s
position: “You’ve lost a lot; I have too….You’re in prison; I’ve been
in a sort of prison myself.” He validates Wayne as a participant in this
conversation with legitimate motivation, not just a convict. “It really
takes a man to admit when he’s wrong and apologize as you just did. I waited
11 years to hear that and I didn’t know if I would ever hear it.” And Wayne
reciprocates, validating Gary as a man: “I’d like to thank you for coming
in today and facing me after what I did to you.”



One might be tempted to view such an exchange with cynicism; nothing has
really changed. Wayne remained in prison. But this exchange occurred before
Wayne Blanchard was up for parole in May 1994. From this experience Gary
Geiger made a decision to appear at Wayne’s parole hearing and to ask the
board to give Wayne another chance. He asked for Wayne’s release. ?



Since Wayne’s release, Gary and Wayne have appeared throughout the state
of New York speaking of their experience.







III. APOLOGY AND THE ADVERSARIAL
SYSTEM




When we ask whether apologies are appropriate in mediation, perhaps the
elements that most lead us to feel it is out of place are our system of
law and the influence of the adversarial system. It is the pairing of these
two – the law and the adversarial system – that create such uncongenial
soil for apology. Our system of jurisprudence is preoccupied with the defense
of individual rights and the fear of the establishment of blame. It is this
fear of admitting culpability that can effectively preclude apology.



Contrast our system with that of the Japanese, a country where the law operates
with a different set of assumptions. For Americans, apology is often equated
with an admission of individual liability under law; apology for the Japanese,
by contrast, plays a major role as a social restorative mechanism. It has
an important ceremonial role in preserving and restoring social harmony
(Wagatsuma and Rosett, 1986, pp. 466, 472).< SUP> ?



The very nature of our adversarial system is antithetical to the setting
needed to allow an apology to emerge. We have noted repeatedly that apology
entails vulnerability. The adversarial system, however, is structured
as a contest. It is organized to produce a winner and a loser and to issue
judgments. It inescapably generates defensiveness. It is a system
that relies on rationalization: there are differing standards of
proof depending on differing kinds of wrong. It deals in degrees
of culpability (“first degree murder, justifiable homicide, etc.) and rationalizes
mitigating circumstances (it was due to an impaired self, diminished capacity,
external forces) (Tavuchis, 1991, p. 19). Yet, this prevarication is precisely
what apology is not, and cannot be, if it is to work. Excuses rationalize:
there was a crisis at home; I was tired, distracted, not thinking, drunk,
etc. In apology I was responsible. I did it. No qualifications, no excuses.
I can only beg your mercy and forgiveness.



This tension between the legal system and apology was most dramatically
seen in President Clinton’s faux-apology on television. Some advisors recognized
the critical necessity for an apology. Democratic political consultant Robert
Shrum proposed a draft in which Clinton would have said: “‘I let too many
people down’ – including his family, the American people and Lewinsky –
and that ‘none of this ever should have happened.’ Clinton would have…said
there was ‘no excuse’ for his behavior and expressly apologized for his
behavior.” But, reports The Washington Post (1998, A16), his personal
attorney David E. Kendall “wanted Clinton above all to do nothing that might
increase his legal jeopardy. This meant limiting apologies and
being vague about precisely what actions he was expressing regret about
.”
?



Perhaps the best examples of our legal aversion to apology are those cases
involving financial misconduct in which a company agrees to cease and desist
from an activity with no admission of fault (Wagatsuma and Rosett, 1986,
p. 471). The examples are legion: Sears’ auto mechanics systematically charging
for work not needed; Prudential Securities pushing bad limited partnerships;
Salomon Brothers buying more bonds than permissible. In each case the company
buys its way out of a jam and, as John Rothchild (1994, p. 51) puts it,
“announces concrete steps to ensure that whatever they haven’t admitted
to doing will never happen again.”



A Place for Apology



In American law, specific places do occur where apology may play a role.
In criminal cases, for example, apology and remorse often result in a mitigation
of punishment (Wagatsuma and Rosett, 1986, p. 479). Apology may also mitigate
damages in a defamation suit and may function as a bar to libel actions
(Ibid., p. 478, 479). There are also instances where an apology has been
a critical element in settlements of lawsuits.



An apology was at the heart of a civil lawsuit brought against the Catholic
Diocese of Dallas. Eleven plaintiffs claimed the diocese had failed to protect
them from Rudolph Kos, a priest in the diocese, who was accused of sexual
molestation of the altar boys between 1981-1992. In the summer of 1997 a
civil jury awarded the plaintiffs $119.6 million, the largest judgment ever
against a diocese. The final attorney-negotiated settlement of $23.4 million
dollars was stalled over the plaintiff’s demand for an apology, even
after the sides had agreed on the damages to be paid
! The apology, when
it came, was a powerful one. Said Bishop Charles V. Grahmann: “I…want
to, with very profound and deep compassion, renew my apology to the victims
and their families for the immense suffering that has been a part of their
lives…” “In exchange for the bishop’s apology, the…plaintiffs agreed
to vacate the verdict” (Blaney and Dooley, 1998, pp. 1, 15).



The Fear of Apology?



Nonetheless, in spite of such dramatic exceptions, the preoccupation of
American jurisprudence with defending individual rights and fearing any
admission of culpability effectively precludes apology in a great many cases.< SUP> This, in spite of the frequent reports that often major civil cases
could have been avoided with a simple apology. A recent example was the
case of Alonzo Jackson, the black teenager who was stopped at an Eddie Bauer
store in Fort Washington, Maryland. A security guard thought Alonzo was
shoplifting a shirt and asked him to take the shirt off. He had purchased
the shirt the day previously and the case flared up into an $85 million
dollar lawsuit against Eddie Bauer. Alonzo’s father, interviewed about the
incident, said that at the time: “An apology would have sufficed…and maybe
a free shirt for (my) son.” (Jones, 1997, pp. C1,4) Alonzo Jackson similarly
said, “If they had apologized from the start or given some response, the
lawsuit wouldn’t happen. It feels like they don’t care.” Eddie Bauer, though
they did apologize publicly, never apologized privately, and indeed went
on to lose this case.



President Clinton’s handling of the Paula Jones lawsuit may be the best
known recent example of the enormous damage that can flow from the failure
to apologize. It now appears that Jones would have settled her famous lawsuit
early on in the process if she had received an apology. Jones’ co-counsel
at the time, Joseph Cammarata, suggested the modest apology that might have
sufficed: “We are not trying to demean him. We don’t need /details/…I
think we need…. something that acknowledges that he may have done something
that is offensive and that he regrets it…./along with/ an expression of
regret and recognition that she did nothing wrong”(Lehigh, 1997, E1). Asked
whether such a settlement might be considered, Robert Bennett, Clinton’s
lead attorney, gave a one-word reply through an aide: “No.” A costly decision
for us all.?



Mediation, Apology and the Law



Even though mediation is meant to be an alternative to adjudication, when
attorneys step into mediation they seldom leave behind their adversarial
instincts. When attorneys are present it is generally far more difficult
to hold open the space for apology. “When nonlegal issues were addressed
in mediation sessions,” noted researchers, “lawyers acted as ‘watchdog(s)’
guarding against their client’s unwitting forfeiture of legal entitlements”
(McEwen et al., 1994, pp. 171-72 cited by Levi, p. 1186). Thus, an apology
arouses suspicion for in apology I relinquish all my justifications. I do
not plead an impaired self, diminished capacity or external forces (Tavuchis,
1991, p. 19). I forswear covering myself in excuses, and allow myself to
appear morally naked, unjustified, undeserving in front of the other (Ibid.,
p. 18). This worries attorneys.



Attorneys would prefer for their clients to keep a respectful silence when
in the presence of the other party lest they unwittingly give away the store.
Leading questions are favored by attorneys as inquiries capable of one word
answers – a safeguard against clients speaking too freely. In apology, in
stark contrast, a client is invited not only to speak freely, but to appear
nakedly, without defense. From this perspective an apology in relation to
the adversarial process resembles David encountering Goliath. The one is
loaded down with protective armor; the other appears in utmost simplicity.?




The following is a fairly typical instance of the difficulty many attorneys
and defendants have with grasping the importance in employment disputes
that apology can have. A mediation client, a 77-year-old woman, filed a
complaint because her employer, having discharged her, reassured her she
would not be embarrassed before her colleagues on her last day. He promised
to provide a cover story for her and say that she was going on “leave of
absence.” When she arrived that last day, however, she was humiliated to
find that several employees already knew she had been discharged. She took
the discharge very personally, protesting that there had never been a complaint
about her work. A new, young personnel manager who had taken a dislike to
the older worker after she had some recent illnesses, complained, “I don’t
want any grandmother working for me!” The worker filed an age discrimination
suit.



Whether the complainant could prove age discrimination was questionable.
Although she had been treated shoddily, shoddy is not illegal. The worker
was grasping for some redress. More than money, this woman wanted an apology.
The attorney for the defendant, however, and the personnel manager wanted
to know what it was that the complainant wanted. The client said again that
what she wanted was an apology.



“But we need to know what you want,” persisted the attorney, looking only
for the dollar figure for which the woman would settle.



The complainant again dissolved into tears. She had wanted to retire with
“grace and dignity,” she said. Instead, she felt humiliated in front of
her colleagues when she realized others knew she had been fired.



In caucus the mediator suggested to the personnel manager that if she could
offer it, an apology here would make all the difference.



Manager: “I’m not going to apologize. I’ve done nothing wrong,” she said.?




Attorney: “How much do they want?”



Mediator: “I don’t know, but I believe it will be a lot less if there is
an apology first.”



The personnel manager finally said she would try. When the joint session
resumed, the manager started well, but quickly slid into defensiveness.



“Ethel, I like you. We have worked together well. I’m sorry you felt we
discriminated against you, sorry you felt we were unfair. We never intended
to hurt you, and we never discriminated. We had a lot of work to do; we
felt it wasn’t being done and we spelled that out in a meeting with you.”



Ethel looked at the mediator for help. The mediator acknowledged her distress:
“Ethel, was this an apology for you?”



In the author’s opinion, this was not an effective apology. It failed on
every count: it was not an acknowledgment, there was no affect, and finally,
there was no vulnerability.







CONCLUSION



Apology – its invitation, its expression, its reception – has been only
minimally explored outside mediation, and rarely in the literature and workshops
of mediation professionals. At most, apology has a place as a sub-set of
discussions of forgiveness. This reflects both an omission of an exchange
vitally important in its own right, and a loss of a key reparative opportunity.?




This essay has attempted a limited task: to clarify to nature of apology,
to claim for it a place in mediation, to describe some of the work involved
in preparing clients for apology, and to distinguish the nature of apology
from the character of the adversary system in order to highlight the impact
of the one on the other. Much work remains to be done if we are properly
to understand apology: the relation of apology to reparations, of the symbolic
to the material; the issue of the technology, art, and timing of apology;
whether preparing people to recognize, accept and respond to opportunities
for apology is necessary or properly the role of the mediator; the place
of apology in different kinds of mediation – victim-offender, divorce, commercial,
and international; and more. But we conclude here with the modest beginning
of staking out the significance of apology.



An apology may be just a brief moment in mediation. Yet it is often the
margin of difference, however slight, that allows parties to settle. At
heart, many mediations are dealing with damaged relationships. When offered
with integrity and timing, an apology can indeed be a critically important
moment in mediation. Trust has been broken. An apology, when acknowledged,
can restore trust. The past is not erased, but the present is changed (Kastor,
1998, p. D5).



Archbishop Desmond Tutu chaired the South African Truth and Reconciliation
Commission for two years. At its conclusion he spoke of the missed opportunity
to heal the wounds of apartheid if only whites had been able to match the
willingness of their black victims to forgive. His remarks captured the
opportunity that apology presents, the difficulty we have in seizing that
opportunity, and the role that third parties can have in inviting apology.?






”My dear white compatriots…
you have been let down by most of your leaders who have made you out to
be too mean-spirited to respond to the incredible magnanimity and generosity
of the victims. Please grasp this opportunity – or do you really agree
with those leaders…? Is there no leader of some stature and some integrity
in the white community who won’t try to be too smart, who is not trying
to see how much he can get away with, but who will say quite simply: ‘We
had a bad policy that had evil consequences. We are sorry. Please forgive
us,’ and not then qualify it to death?”(Reuters, 1998, p. A20).


Divorce mediation offers just
such an opportunity for clients to acknowledge they have acted in ways that
have created injury and are sorry for the damage they have done to their
marriage and their spouse. At the core, mediation can help people face damaged
bonds and sort through whether anything is still intact. If the marriage
vow has been broken and trust betrayed, does anything remain? Has everything
been destroyed? An apology is often a means of saying, “Yes, there has been
a terrible wound here, for which I am truly sorry. My intention is not to
destroy you. I am ending this marriage, but I would like to close that door
gently, not slam it shut.”



Wil Neville (1993) tells of meeting a woman who said she was getting ready
to go back to court for the seventh time with her former husband.



Wil exclaimed: “Wow, what is it you’re wanting?”



She said, “More money.”



He said, “I don’t think you get money from court; I think you pay more to
go to court.”?



The woman asked: “What do you think I want?”



Neville said, “I don’t know, but if you’re going back for the seventh time,
it says there’s something really deep and really personal for you. My hunch
is you’d like to hear him say, ‘You were a good spouse. We did have some
good times. I am genuinely sorry that the good times didn’t go on.'”



Neville commented, “I noticed her tear up.”



Finally she said, “If I could ever hear that, I would never bother him again”!





References



Blaney B. and Dooley, T. “Diocese apologizes in Kos case.” San Francisco
Star Telegram
, July 8th, 1998, 1, 15.



Boyer, P. J. “The People’s Network.” The New Yorker, 1998, 28.



Cloke, K. “Mediating Sexual Harrassment Cases,” Mediation News, 11,
#3, Fall 1992, 20-21.



Duke, L. “Winnie Mandela: Murder Accusers ‘Liars,'” The Washington Post,
December 5, 1997, A1, 48.



Editorial, “Mea Not So Culpa.” The Washington Post. August 19, 1998,
A20.



Felstiner,W. L. F., et al., “The Emergence and Transformation of Disputes:
Naming, Blaming, Claiming…” Law and Society Review, 15 1980-1981,
631-654.



Franklin, J. H. “America’s Own Holocaust.” Newsweek, December 8,
1997, 61.



Goffman, E. Relations in Public: Microstudies of the Public Order.
New York: Basic Books, 1971.?



Harris, J. F. “Words Were Clinton’s Own, Too Much So, Aides Worry.” The
Washington Post
, August 19, 1998, A16.



Jones, T. “The Shirt Off His Back.” The Washington Post, September
26, 1997, C1,4.



Kastor, E. “The Repentance Consensus: A Simple Apology Just Doesn’t Cut
It.” The Washington Post, Aug. 19, 1998, D5.


Kelly, M. “A Pathetic Speech – And Untrue.” The Washington Post,
August 19, 1998, A21.



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



Lehigh, S. “Doing the smart thing: A Clinton apology-of-sorts would be a
good way to end Paula Jones suit.” The Boston Globe, January 19,
1997, E1.



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



McEwen, C.A., and Milburn, T.W., “Explaining a Paradox of Mediation.” Negotiation
Journal
, January, 1993, 23-36.



McEwen, C.A., et al., “Lawyers, Mediation, and the Management of Divorce
Practice,” Law and Society Review, 28, 1994, 149ff.



McGrory, M. “A Sorry Confession.” The Washington Post, August 20,
1998, A3.



Minow, M. Between Vengeance and Forgiveness. Boston: Beacon Press,
1998.



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



Murphy, J., and Hampton, J. Forgiveness and Mercy. New York: Cambridge
University Press, 1988.



Neville, W. “Reframing and Mediation,” Audiotape of Presentation at the
national Conference of the Academy of Family Mediators, Workshop F6, 1993.



Purdue, J. “‘Haunted’ UM pastor reconciles with his past,” The United
Methodist REVIEW
, February 21, 1997, 2.



Reuters, “Tutu Says Most White Ex-Leaders Lied to Truth Panel.” The Washington
Post
, August 5, 1998, A20.



Rothchild, J. “How to Say you’re Sorry.” Time, June 20, 1994, 51.



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.





Notes





1
President
Clinton’s initial “apology” in the Monica Lewinsky affair has joined Richard
Nixon’s as a classic example of a failed apology. See for example,
Michael Kelly’s harsh assessment:”Our Bill has never really apologized for
anything in his life, and he didn’t now. He never used the words “I’m sorry,”
and he acknowledged “regret” only glancingly and euphemistically. Indeed,
as he made quite clear, he wasn’t sorry, except, as all adolescents are,
for getting caught. His passing imitation of an apology lasted for all of
one sentence. By contrast, he devoted nearly nine full paragraphs to offering
excuses….”(Kelly, 1998, A21).



2The press reported that Clinton’s advisors recognized the need
for a felt expression of regret. The Washington Post reported that Paul
Begala, one of Clinton’s advisors, who drafted the speech, included in his
speech “far more forceful language of regret.” (Harris, 1998, P. A16).



3An interesting example in the American setting of the recognition
of the value, and perhaps necessity, of apology in a sexual harrassment
case is found in Ken Cloke’s recommendation of a “surrogate apology.” If,
he suggests, “the perpetrator is unable to apologize, the mediators may
do so as ‘surrogate’ apologists, saying: “‘Perhaps what ____ should have
said to you is, I’m very, very sorry for what I did and I know that nothing
I can say can make up for what I have done.” The mediators should say what
they would want to hear if they were the victim” (Cloke, p. 21).



4Lon Fuller has identified the distinctive mode of expression
in adjudication as a “device” that “gives formal and institutional expression
to the influence of reasoned argument in human affairs. As such it
assumes a burden of rationality not borne by any other form of social ordering…”
(italics added).



“Professor Fuller observes that the demands made outside the courtroom may
or may not be supported by principles. For example, one may appeal to generosity
or offer to exchange some benefit for satisfaction of the demand. Once one
enters the adjudicatory arena, however, a demand must become a claim of
right supported by principles,” notes Levi, (1997 p. 1170, citing Lon L.
Fuller, “The Forms and Limits of Adjudication,” 92, Harvard Law Review,
(1978), 353ff.). (David Hoffman called the author’s attention to the Levi
article.)



“/I/t is no surprise that apologies are not a part of the courtroom repertoire.
Unless legally recognized…they do nothing to adjust the allocation of
rights rationally between the parties.”



The formalizing of the injury is only one part of the deconstruction of
the space in which an apology might appear. The effect of the adversarial
system in occluding the original insult which initiated a conflict also
means that people may long since have lost sight of why they were fighting.
As McEwen and Milburn note (1993, p. 28, cited by Levi, p. 1198, n. 142),
initial tangible goals of apology, changed behavior and compensation often
are lost in the “emerging metadisputes” which “highlight goals of victory,
vindication, or retribution.”

                        author

Carl Schneider

Carl D. Schneider, Ph.D. Over the past 30 years, Carl has trained several thousand family mediators. Currently Director of Mediation Matters, Kensington, Maryland, Carl is a registered psychologist (Il.), licensed clinical Marriage and Family Therapist (Md.), Certified Mediator with the Maryland Council on Dispute Resolution and with the Supreme Court… MORE >

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