I have followed the recent debate on the appropriateness and effectiveness of apology in mediation with great interest. The points and counterpoints of this dialogue perhaps have been best characterized by two articles recently published on these pages by California’s Jeff Kichaven and Darrell Puls of Washington. I have studied both sides and after plugging in my own experience have come down on the side of “effective”. My mediation experience indicates that while meaningful apology may not make the dispute go away, it certainly can help to set the tone and tempo of the negotiation and in turn, relax the emotional level that may be playing a part in the dispute. It is important to keep in mind that I refer to meaningful apology. Furthermore, I don’t necessarily mean apology that contains a total admission of wrongdoing, but rather something that may often fall short of that, containing a sincere expression of regret as to the circumstances that disputants find themselves in at the mediation.
To begin, a capsule of what Jeff and Darrel wrote – at least some of the more important sound bites – is in order. Jeff concludes that apology is overrated, but he does so with reservation (Apology in Mediation: Sorry to Say it’s Much Overrated). His reasons include the fact that most people don’t feel that they did anything wrong, that apologies are not useful anyway and that there are numerous other things you can do at mediation to make other people feel important and appreciated besides apologizing to them (for example, dressing respectfully and listening attentively or even superficially apologizing). Nevertheless, he acknowledges that a “well-constructed apology” in the mediation is something which may serve the participants. Jeff writes that the major shortcoming of apology is that it may be perceived as having been made “for consideration” and therefore is meaningless: that “. . . . in the context of a mediation, an effort to negotiate resolution of a litigated case, it is difficult for an apology to be perceived in any other way”.
Darrell opines in part that one of the reasons apologies don’t succeed is perhaps because they don’t go far enough (Apology: More Power Than We Think). He also thinks people are afraid to apologize. He has written about the various levels of apology (four of them according to him) with the strongest level adding the element of “justice” to the equation (“What can I do to make this right?”). Both have a lot to say and their articles are well worth reading.
Of course, not all cases are conducive to the use of apology, with the ones having emotional aspects arguably meriting its consideration the most. That having been said, I have mediated what initially appeared to be benign, even dry, commercial disputes, only to find an underlying wide vein of emotion.
In demonstrating how an apology may set the tone for mediation, Jeff writes about an actual dispute that he mediated where the opportunity for apology was missed and where the mediation ended in disaster. He relates how he offered to defense counsel, “a highly placed partner in a major law firm”, a great opportunity to set a tone. It was not a large case, but to the plaintiff, an elderly banking customer who had received rude treatment after the bank reneged on one of its promotions, principle played a large part. It should have been resolved. Jeff’s a talented neutral and his attempt to elicit an apology from defense counsel was perfect.
“You know, I’m glad you’re here in mediation because your 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 twenty years and 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 a 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 that 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.”
Jeff goes on to tell how this lawyer “straightened up in her chair”, looked down at her notes, and responded to what Jeff thought was “a big fat softball pitch”:
“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”
Jeff describes this as the “....worst mediation advocacy I had ever seen, and the result was predictable. By the day’s end, the president of the bank had seen fit to offer $30,000.00 in settlement, an amount in excess of the anticipated future defense fees . . . [and probably much more than the case was worth] . . . 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 . . . [this lawyer] . . . had shown the widow and her daughter hours before.”
I have experienced similar moments in my mediation practice. Some horrible mediation advocacy, but some great stuff, too. Take, for example, the time when a superb medical malpractice defense lawyer spoke to the family of the decedent college student who had died from an alleged undiagnosed pulmonary embolism. He represented one of several defendants and in opening caucus, when his turn came, he said the following:
“Mr. and Mrs. Smith, I represent Dr. Jones who, as you know, was the first person to treat your wonderful son when he first complained of pains in his legs and chest. I was with Dr. Jones the day that he received the lawsuit. That was the first time he even knew that your son had died. He was horribly shaken on that day. I was with him again last night in preparation for this mediation, nearly two years after the filing of the lawsuit and I want to tell you that he was as shaken last night as he was two years ago. We feel terribly about this tragic loss and hope that we’re able to resolve any differences that we have in this mediation today.”
Think of the difference between this presentation and Jeff’s example. This lawyer represented one of five defendants. None of the other four defendants had made such an unusually focused, heartfelt and meaningful statement of regret, and while significant money was paid to the plaintiff at the end of the day, the words of this particular lawyer helped set the tone for the rest of the day. He helped everybody in the room; assisting people to focus on the limited nature of the mediated resolution – the fact that this wonderful young man who had perished could never be replaced – and it allowed the family the dignity and moral room to negotiate with honor and pride and to move on with their lives. I bumped into this lawyer a few weeks later and told him how constructive his statement was. He said, “Jerry, I learned something about mediation. You need to come with the right attitude.” It is this “right attitude” that to me best describes good mediation advocacy.
Now, getting back to my point about meaningful. Another word: sincere. Yet another: genuine. I have seen practically the exact verbiage of apology as above used in other mediations, only to fall flat on its face, either because it was done insincerely or it was followed by an explanation of defenses that belied the expression of regret. As neutrals we can never lose site of those core values that are essential to excellence, in whatever our endeavors. Among these are authenticity and genuineness. The best of the best, in whatever field are human beings, first and foremost, and without this “humanness”, we are merely going through the motions. This goes for advocates and neutrals alike.
Just because lawyers – especially trial lawyers – might be wonderful at the arts related to advocacy and litigation, does not mean that their skills of negotiation or mediation advocacy are in tune with the realities of the moment. I have seen many fine lawyers snatch defeat from the jaws of victory by awkwardness, insincerity (the kind that can make you crazy when, for example, little kids say “I’m sorry” but clearly don’t mean it), missteps and downright ineptitude during the negotiation process. These lawyers didn’t understand being “in role” as mediation advocates. In fact I am spending more and more time, as are many neutrals, in advising lawyers on negotiation and mediation advocacy. Getting an apology on the table – especially the right kind – is a difficult, unique and extraordinarily challenging task that we often take for granted.
Recent Interest and Study
What does the data tell us about the value of apology? There’s a growing amount since the topic has generated considerable interest lately. Common sense tells us that “communication” is an essential ingredient to effective mediation and negotiation. Common sense and statistics also tell us that with respect to the whirlwind world that we live in, there is increasingly less time, room and effort to conduct effective “communication”. Mediation isn’t the only arena that’s paying attention to apology. Health care is becoming increasingly focused on the subject and there’s notable apology and communication “science” and experience that is being compiled with respect to medical mistakes.
I recently spoke to a group of doctors and observed that unfortunately many of them do not have the time or resources for history-taking that they once did and have thereby lost one of the significant opportunities to establish rapport – built upon communication – with patients. What was once the norm is now a luxury and the exception, and this development doesn’t help when mistakes are made, since without any sense of communication with their medical providers – whether one calls it apology, rapport, or whatever – the odds are demonstrably greater that patients will sue. There is no line on any reimbursement form that says “empathy services” (probably one of the reasons for the diminution of time spent on patient history and rapport) and yet it is exactly this empathy – a form of communication – that has always been a structural element of the doctor/patient relationship. Likewise it is an essential element in the communication that is often necessary for a successful negotiated or mediated resolution in legal disputes.
Following this data and trend, some legislatures are protecting apologies for medical mistakes by excluding them from legal proceedings. Leading the trend, various medical institutions such as Johns Hopkins University and affiliated hospitals and the University of Michigan Health System, with or without legislative protection, have established formal apology policies and procedures. The results of the latter are remarkable, with a dramatic drop in claims and suits. The other, and perhaps more important by-product, according to a recent article in Time magazine is that there is better medicine because things are not swept under the rug and people are able to better explore what really might have gone wrong. Furthermore, the elements of bitterness and adversity are removed.
Likewise, it is the adversarial nature of litigation that too often dominates the mediation and needs to be removed from the proceeding, thereby allowing the expressions of empathy and regret that can be so effective. A challenging task indeed. Like doctors, disputants and representatives in legally based disputes who are actively engaged and sensitive to the opportunity for apology generally have a much better success rate with respect to concluding disputes than their counterparts who are not.