Apology in Mediation: Sorry To Say, It’s Much Overrated

by Jeff Kichaven
September 2005

Jeff Kichaven writes on mediation for the International Risk Management Institute. First published on IMRI.com.

Jeff Kichaven
What does mediation have in common with love? Well, according to one definition, “Love means never having to say you’re sorry.”

When I started training to be a mediator, though, I was taught that mediation involved something different. “Mediation” was supposed to be a Camelot of conflict resolution! A forum where contentiously behaving people could come for a therapeutic sprinkling of pixie dust! Apotheotic apologies for the asking, forgive and forget, kiss and make up, live happily ever after!

Sobering years of experience as a mediator have confirmed that this Camelot, along with all the others, is a myth. But I’m still romantic enough to believe that love can be real, and that mediation, like love itself, can work well without anyone ever having to say they’re sorry. At least not in the conventional way we think of apologies.

With a different twist and a bit of creativity, we can see that a different type of apology can be created, and can become one of the negotiator’s most effective tools, both in mediations and elsewhere.

Why We Almost Never See People Apologize

There’s a simple reason why we see so few sincere, heartfelt apologies, whether in a mediation or any other context of our lives: Very few people really believe they have ever done anything seriously wrong. Nowhere is this point illustrated more dramatically than in the opening passages of that human relations masterpiece, Dale Carnegie’s How to Win Friends and Influence People. Mr. Carnegie begins with an anecdote about the capture of “Two Gun” Crowley after what he describes as “the most sensational manhunt New York City had ever known.”

Two Gun Crowley was “one of the most dangerous criminals ever encountered in the history of New York.” He would kill, according to the Police Commissioner, “at the drop of a feather.” Mr. Carnegie inimitably describes the story’s denouement:

Crowley was sentenced to the electric chair. When he arrived at the death house in Sing Sing, did he say, “This is what I get for killing people?” No, he said: “This is what I get for defending myself.”

The point of the story, according to Mr. Carnegie, is that Two Gun Crowley didn’t blame himself for anything. And, also according to Mr. Carnegie, neither did Al Capone or Dutch Schultz or scores of other truly evil people. In fact, Mr. Carnegie recounts that he had some interesting correspondence with Lewis Lawes, who was warden of New York’s infamous Sing Sing prison for many years, on this subject, who declared that:

few of the criminals in Sing Sing regard themselves as bad men. They are just as human as you and I. So they rationalize, they explain. They can tell you why they had to crack a safe or be quick on the trigger finger. Most of them attempt by a form of reasoning, fallacious or logical, to justify their antisocial acts even to themselves, consequently stoutly maintaining that they should never have been imprisoned at all.

Dale Carnegie concludes his analysis with a powerful rhetorical question: “If Al Capone, ‘Two Gun’ Crowley, Dutch Schultz, and the desperate men and women behind prison walls don’t blame themselves for anything—what about the people with whom you and I come in contact?” My experience in thousands of mediations bears this wisdom out. Not once has a defendant turned to me and said, “Gosh, you know, now that I have heard plaintiff and his lawyer speak, I guess I really am a fraudster!” Nobody has ever acknowledged that, “Upon studying the RICO statute more closely, it seems I really do fit the definition of a racketeer!” Not one plaintiff has ever admitted that, “I really am a base opportunist, motivated by juries’ notorious susceptibility to emotional appeals.” Even in simple negligence cases, nobody ever says, “I was just careless.” Everyone has an excuse, a justification, something that we just have to understand so that we will not judge them harshly. No different than in Dale Carnegie’s day, people don’t blame themselves for anything. Don’t expect them to apologize.

Why Apologies Are Not That Useful Anyway

Even if someone were of a mind to apologize, they probably wouldn’t, and maybe they shouldn’t. They probably wouldn’t because they are not likely to be believed. And maybe they shouldn’t because, if they were to be believed, they risk having their candor exploited. Why is an apology not likely to be believed? Because seasoned participants in mediation are wise to the game. They know that mediators are trained to view financial issues as proxies for underlying emotional issues, and that many mediators believe that resolution of the emotional issues will make it easier to bring parties together on financial terms. So, trial lawyers will now commonly tell mediators in private caucuses:

That apology was very nice, but we didn’t believe a word of it. We think they said it only to try to soften us up on the money. It won't work. We don’t believe their little stunt. We still want what we believe the case is worth.

An apology which is perceived as having been made “for consideration” is, as many commentators before me have noted, meaningless. In the context of a mediation, an effort to negotiate resolution of a litigated case, it is difficult to have an apology be perceived in any other way.

Moreover, even the most sincere apology is subject to exploitation. There is always a risk that the plaintiff’s side will hear this Mea Culpa and say, “thanks for giving us our litigation roadmap, We’ll see you in court.” If the mediator has done his or her job right, the atmosphere is set to minimize this risk. But not even Abraham Lincoln could guarantee that a plaintiff will take a sincere apology in the spirit in which it is offered and respond with charity, not malice. A More Useful Context in Which To View Apologies Dale Carnegie got us into this conundrum. Can he get us out? Chapter 2 of How to Win Friends and Influence People is entitled “The Big Secret of Dealing with People.” That chapter holds the key, a new context in which apologies can be viewed as one subspecies of a broader approach which is more realistic and therefore more likely to be effective.

Carnegie identifies “a gnawing and unfaltering human hunger,” and tells us that “the rare individual who honestly satisfies this heart hunger will hold people in the palm of his or her hand, and even the undertaker will be sorry when he dies.” This rare individual, to whose personhood we all presumably aspire, will be able “to get anybody to do anything.” And isn’t that the goal of mediation and all negotiation, really, to get people to do things that seem reasonable to us, but don’t yet appear that way to them?

The way to satisfy this “heart hunger” is as difficult to achieve, especially in the context of litigation, as it is simple to articulate. To paraphrase Mr. Carnegie, we must make other people feel important and appreciated. Important and appreciated! How easy to say, yet how challenging to accomplish in a litigation context, where expense, delay, and disruptiveness are the coin of the realm.

Fortunately, mediation provides an oasis in the litigation desert where this heart hunger may yet be sated. There are hundreds of things you can do at a mediation to make others feel important and appreciated. Arrive on time. Bring the right people. Dress respectfully. Listen attentively. Apologize. But don’t apologize in the conventional way. Apologize in a way that admits no liability or fault. Self-flagellation is not required. Any sentence that begins with “I’m sorry” and continues with some recognition of the other side’s human condition will do. It will be more than adequate to make the other side feel important and appreciated. In a medical malpractice case, it might start out as, “I’m sorry the operation had a bad outcome.” In an employment case, “I’m sorry you have not yet found another job.” In any case, “I’m sorry this has reached the point where you felt it necessary to sue me. I did not intend you any suffering.” What defendant, after all, is not sorry that he or she has been sued? Do we really intend that others suffer? This kind of apology is sincere, it acknowledges the plaintiff as a human being, it places everyone on a small tuft of common ground, and it sets the stage for tremendous progress in the conversation.

Where the opportunity for such an apology is missed, a mediation can end in disaster. Where the opportunity is seized, success is still not guaranteed, but the chances of a successful resolution are greatly increased. An example of each type of case, from my own experience, makes the lesson clear.

The Nightmare.

A community bank offers free safe deposit boxes to depositors. An elderly couple takes advantage of the offer. Eventually, the husband dies and the widow, in her 80s, and her daughter, in her 50s, come in to sign new signature cards. The bank takes the new signature cards and does not file them, but rather loses them. At year end, the bank considers the box abandoned, drills it with appropriate witnesses, records its contents as “empty,” and life goes on.

Until the widow pays the bank a visit, that is. She is shocked to learn that her safe deposit box is no longer there, and feels that she is not treated appropriately by the bank personnel to whom she complains. Her distress grows so great that she consults a lawyer and a lawsuit is filed.

At the mediation, plaintiff’s counsel begins an initial joint session by explaining that the widow does not exactly remember the last time she and her husband visited the deposit box, or just what was in it. The lawyer recounts that the widow thinks there may have been some envelopes there, sealed of course, but perhaps with cash, perhaps with locks of their children’s baby hair, perhaps with a love letter from the husband, to be read after he died. How tragic, the lawyer concludes, that the poor widow will have to go to her grave never knowing what was left behind in that precious safe deposit box.

I paused and counted to ten. Defense counsel was a highly placed partner in a major law firm. I turned to the attorney and said:

You know, I’m glad you’re here in mediation. Because your law firm runs a business, I run a business, your client runs a business. We all have clients, or customers, and we all want to keep our clients happy. Here you have a customer who had been with your client’s bank for over 20 years. Now she’s a former customer. Nobody wants to have an unhappy customer. Here in mediation, you have a chance to do something you could never do in court. I know you don’t believe your client has done anything wrong, and I’d never ask you to acknowledge any such thing. But here you have the unique opportunity to look across the table at this nice woman, and respecting the fact that you don’t think your client did anything wrong, you can still tell her how sorry you are that she got so upset that she took the extraordinary steps of hiring a lawyer and filing a lawsuit against you.

Litigator X straightened up in her chair, looked down at her notes, and responded to what I thought was a big fat softball pitch thusly:

I will do no such thing! I am here to explain why all appropriate banking regulations were followed, why my client did nothing wrong, why we are extremely likely to obtain summary judgment in this case, and why we think it has at best nuisance value for settlement purposes.

A nuisance! Talk about the antithesis of making someone feel important! Or feeling that their patronage over 20 years was not the least bit appreciated! This was the worst mediation advocacy I had ever seen, and the result was predictable. By day’s end, the president of the bank had seen fit to offer $30,000 in settlement, an amount in excess of the anticipated future defense fees. But the case did not settle. No matter what the number had been, it could not have been high enough to make up for the manifest disrespect Litigator X had shown the widow and her daughter hours before.

The Dream.

As if to prove how rarely an appropriate apology is used effectively, this anecdote comes from a simulated mediation rather than a real one.

In 2001, we presented the mediation Palsgraf v Long Island Railroad as a continuing legal education (CLE) program for the ABA’s Tort Trial and Insurance Practice Section at the Association’s annual meeting in Chicago. Robin Westerfield of Walnut Creek, California’s Bowles & Verna played the role of trial counsel for the LIRR.

As we were walking on stage into the mythical mediation room, before we were even seated, Mr. Westerfield turned to Rene Ellis of Duke Law School, who played Mrs. Palsgraf, and said:

Mrs. Palsgraf, before we actually begin the mediation, I just want to let you know how sorry we are that the explosion occurred and how sorry we are that you were caught in the middle of it. We pride ourselves on keeping our passengers safe, and we’re sorry that you were hurt while you were standing on the platform of one of our stations.

Did that ever put magic in the air! No admission of liability or fault. Not for any consideration, because Mr. Westerfield characterized his apology as taking place “before we actually begin the mediation.” A recognition of the facts that Mrs. P. was important as a customer, that her patronage was appreciated, and that she had in fact suffered as a result of all this. Not surprisingly, at the end of our little play, Mr. Westerfield and his opposing counsel, Honolulu’s Richard Turbin, got the case settled.

A complete work of fiction, improbable in real life? Maybe. But the players were deeply “in role” that day, and really put me through my paces in the role of mediator. It worked for us, and it may well work for you. A well-constructed apology in a mediation, or any other negotiation, is something for which you will never have to say you’re sorry.

Biography


Mr. Jeff Kichaven is one of California’s leading mediators of insurance coverage and bad faith cases. He practiced business litigation for over 15 years before he began his full-time mediation practice in 1996. Today, Mr. Kichaven mediates approximately 200 cases per year.

Mr. Kichaven also has a distinguished record of service to the bar and the larger community. He is the first full-time mediator to serve as a trustee of the Los Angeles County Bar Association, and also serves as chair-elect of the ADR Committee in the ABA’s Tort Trial and Insurance Practice Section (TIPS), and as a director of the Southern California Mediation Association. He has previously served on the Council of the ABA’s Section of Dispute Resolution and as chair of the Los Angeles County Bar’s ADR Section.

In addition, Mr. Kichaven is an adjunct professor at Pepperdine University School of Law and has conducted Advanced as well as Beginning Mediation Training for the ABA, the Los Angeles County Bar, the California Court of Appeals, the U.S. District Court (CD Cal) and many other state and local bar and mediation associations. He is also a Fellow of the International Academy of Mediators. Mr. Kichaven also serves on the Board of Directors of Sinai Temple in Los Angeles and on the National Legal Committee of the American Jewish Committee.

Mr. Kichaven is an honors graduate of the Harvard Law School (JD, cum laude, 1980) and a Phi Beta Kappa graduate of the University of California—Berkeley (AB in Economics, 1977).



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