"I’m Sorry": The Power of Apology in Mediation

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THE ELEMENTS OF APOLOGY:

Apology involves the acknowledgement of injury with an acceptance of responsibility,
affect (felt regret or shame – the person must mean it), and vulnerability – the risking of an
acknowledgement without excuses. It is 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, in
Tavuchis’ phrase, “nothing, except a…speech expressing regret.”

Aaron Lazare has best captured the ritual exchange of apology: “What makes an apology
work is the exchange of shame and power between the offender and the offended.”

APOLOGIES IN MEDIATION

Apology is central to mediation: mediation regularly involves disputes in which one party
feels injured by the other. An apology is an act that is neither about problem-solving or negotiation.
Rather, it is a form of ritual exchange where words are spoken that may enable closure. In the
language of transformative mediation, apology represents an opportunity for acknowledgement that
may transform relations. Most of us recognize its role in victim-offender mediation and community
conferencing, but it can play an equally critical role in other forms of mediation, including
employment and divorce mediation.

ASSISTING CLIENTS WITH APOLOGY: WHAT MAKES IT WORK?

People can authentically apologize in mediation, but they often need help in getting past the
defensiveness and fear of blame that preclude apology. Apology can not be imposed. It is a moment
of opportunity. Parties often need preparation and help with the words. An apology involves such
vulnerability that often the only way it is safe enough is with the mediator’s assistance in putting the
apology in words.

Apology involves an exchange of power and shame. Apology is a form of non-coercive
power-balancing enacted by parties in which the powerful offer their vulnerability and through
recognition, the injured/humiliated are empowered.

APOLOGY AND THE ADVERSARIAL SYSTEM

Apology can be a critical element in the settlement of lawsuits. Many of us have been in
mediations in which there is a palpable desire for – sometimes an explicit insistence on -apology
from plaintiffs. Many of us have witnessed the enormous cost of missed opportunities for apology.
The pairing of the law and the adversarial system, however, makes for a matrix antithetical to
apology. The preoccupation of American jurisprudence with defending individual rights and fears
of admitting culpability can function to preclude apology with its naked unqualified
acknowledgement of responsibility. As Lon Fuller has noted, adjudication involves rational ordering
of a complaint according to principle whereas apology is not an appeal to reason. The adversary
system breeds defensiveness; apology requires vulnerability.

It is possible to have a legal system more supportive of apology. The legal system in Japan
functions quite differently and there apology plays a major role as a social restorative mechanism.

MEDIATION, APOLOGY AND THE LAW

When attorneys are present in mediation it is generally far more difficult to hold open the
space for apology, since attorneys are habituated to their role as “watchdog, guarding against their
client’s unwitting forfeiture of legal entitlements” (McEwan). This creates a wariness of apology
which is a moment where a client relinquishes all justifications, excuses, and counter-claims and
instead faces the other with moral transparency.

Apology and the adversarial system resemble David encountering Goliath: the one is loaded
down with protective armor, the other comes seemingly defenseless. Many mediations
are centrally about a damaged relationship. Trust has been broken. When offered with integrity and
timing, an apology can be a critically important moment in mediation. An apology, when
acknowledged, can restore trust. As Wagatsuma observes, “There are injuries that can only be
repaired by an apology.” The past is not erased, but the present is changed.

In divorce mediation an opportunity sometimes occurs for clients to acknowledge they have
acted in ways that have created injury and they are sorry for the damage inflicted on their marriage
and their spouse. The mediator can help people face damaged bonds and sort through what remains.
With the marriage vow broken and trust betrayed, does anything remain? Is everything destroyed?

An apology is an opportunity to say, “Yes, there has been a terrible wound here, for which
I am truly sorry. My intention is not to destroy you. I am ending a marriage, but I would like to close
that door gently, not slam it shut.”

BIBLIOGRAPHY:

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

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

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

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.