Litigation is usually fun only for the litigators. It is a stylized joust that is expensive without any guarantee of benefit, and an assured guarantee of frustration, lost productivity, and lost time. Is there a way of getting through the morass of lawsuits faster and in ways that lower costs and increase client satisfaction on both sides of the aisle? Is there a way to avoid being sued? An ever increasing body of evidence strongly suggests a “third way” alternative to litigation that often stops litigation before it is filed.
It starts with answering this rather complex question, “What if we just told the truth – all of it, without defense, without excuse, without blame, took responsibility for the consequences, were transparent in all of it, and offered to make things right?” Most counsel will say that the one who does this has just set themselves up to lose a huge lawsuit. I argue along with others that this complex question goes well beyond the realm of conventional thought and into the more fluid and nuanced world of restorative justice.
I have come to believe that we have thought of restorative justice in much too restrictive a context.
Most published articles regarding restorative justice place it squarely in the realm of the victims of criminal offenses and the offenders who did the crimes, and particularly within face-to-face victim-offender mediation because the current system is transparently ineffective at curbing further crime.
The current legal system, be it criminal or civil, has all communication between the parties done through attorneys and the courts, but some victims find it necessary to confront the offender face-to-face. They must see him, hear his voice, and watch his body language to satisfy themselves that the offender is no longer a threat. If the offender confesses both the act and the damage done, and makes an offer of restitution, the data clearly indicate that it is more likely that the victim will forgive and find personal release from the act, knowing that both making the request and granting forgiveness have behavioral and moral consequences for both parties. (Note: Forgiving does not forego justice by condoning or pardoning the act, but is a series of decisions to let go of anger and the desire for revenge. Rather, forgiveness and justice are intertwined.) Restorative justice, in treating crime and civil violations as the abuse of one person by another, meets these needs through face-to-face dialogue, problem solving, repentance, social repair, and the possibility of forgiveness. Otherwise, why bother? Thus, the restorative model opens a window of opportunity for the two parties to each find cathartic release and relational repair; it is win/win rather than win/lose or lose/lose.
Restorative justice works in the criminal setting, particularly with juvenile offenders. Offenders who have gone through mediation with their victims have considerably lower recidivism rates than those sentenced only to strict punishment, with particularly dramatic reductions in juvenile offender recidivism. Restorative justice also goes far in helping victims heal the past and move into a brighter future through these intimate encounters where remorse and apology help bring closure to victims and restoration to offenders.
What exactly is restorative justice? Simply put, it is justice that restores the offender to a place of dignity and respect in the eyes of the victim, and humanizes the victim from object to living, breathing person in the eyes of the offender, with the net result of restoring dignity and honor to both. If that is the proper context, then limiting restorative justice to the criminal justice system confines our thinking and practice to standing on the border of a vast new country and calling what we see all there is. If we define victims as those persons directly affected by a harmful action, including family members and members of the affected community, and “offense” as a breech of a moral, social, or legal code, we immediately understand that the borderland we see is very narrow, so we must look beyond it.
Already we have moved the restorative justice model (though no one calls it that) into the hospital/medical bad outcome field, and with startling results. The University of Michigan Hospitals in 2002 adopted a policy of immediate full disclosure, sincere apology, restitution, and transparency in their investigation into every medical error case. Rather than seeing huge increases in the number of lawsuits, the number of new lawsuits dropped by more than 60% within 18 months, and legal costs also dropped by the same factor. The amount of time to settle bad outcome cases dropped from three years to one and satisfaction rates from both sides of the table increased significantly, and legal costs dropped from an average of $65,000 per case to $35,000. This has been replicated at the Dana Farber Cancer Center, Johns Hopkins University, Children’s Hospital of Minneapolis, Children’s Healthcare of Atlanta, and the Veterans Administration Hospitals saw an even more amazing change: average settlements dropped from $98,000 to $16,000. In all of these scenarios, victims and their families reported much higher levels of satisfaction than in those cases handled in the more traditional manner. Why is this? People want to see their physicians as fallible human beings, and they find it much easier to forgive when he or she admits honest error, expresses sorrow, and does everything possible to make things right again, but demands tend to harden if victims believe there is a cover-up or that they are being stonewalled.
As one plaintiff’s litigator put it, “I would never introduce a doctor’s apology in court. It is my job to make a doctor look bad in front of a jury, and telling the jury the doctor apologized and tried to do the right thing kills my case.”
Restorative justice is more about emotional respect and restoration of human dignity than it is anything else. If this is the case, then where else might it be beneficial to everyone involved?
Anyone who has ever worked with wrongful employment discipline or termination cases knows the high levels of emotion and anger that permeates the appeals process. I recently worked with a case where the potential plaintiff, a woman whose employment was roughly and abruptly terminated, had a clear case of having endured an extremely abusive and hostile work environment – she had a strong claim even though her termination for other reasons was appropriate. I spent several hours with her and she admitted that they had cause to terminate her employment. She was not so much humiliated at having her employment ended, but at the manner in which it was ended – she was abruptly confronted by four senior managers, told she was fired, told to turn over her keys, and then told to leave – within hearing of her 11-year old daughter, who had been standing close by but out of sight. In talking with the most senior manager, I saw that he recognized that they could have done things better, but he was also battening down the hatches for a major lawsuit. I asked him to get the other three managers together and meet with their former employee on neutral ground. I then asked them to each sincerely apologize for the manner in which the termination was conducted, but not for the decision to terminate. I then coached them to ask what they could do to make things right.
Conventional legal wisdom says that I just set them up to lose a huge verdict, but the hard data say otherwise, and I knew it. They did what I asked of them, her sense of honor and face was restored, and in 20 minutes a huge potential verdict was settled for about $3500.
In another recent case, a woman returned from vacation to find a certified letter stating that she had been terminated from her job three days previously. The employer, fearing liability, refused to give reasons, had police escort her out when she came to claim her personal belongings, and refused to apologize for the inhumane manner in which the termination was carried out. Not getting an apology for the way she was treated, she filed suit. In another case, the employer spent about $200,000 developing its defense and about $750,000 on a settlement when all the man wanted was an apology, his old job, and back wages; he even would have signed an agreement guaranteeing his silence. In both cases, the plaintiffs wanted restorative justice but were denied, at a huge expense to the employers.
When we think about it, most lawsuits are not about the law at all – they are about how people feel they have been treated. Unfortunately, lawsuits have been the only avenue of recourse, and even that is a lose/lose proposition – no matter who wins or loses, everybody loses in terms of time, anxiety, frustration, lost productivity, health, and even money.
Restorative justice is a two way street upon which confession introduces victim and offender, remorse makes them reach out for each other, repentance begins rebuilding trust, and mercy intervenes with justice to create a place where they kiss instead of hiss. Its possibilities are many, limited only by imagination as we move out of borderland and into the unexplored interior.
So, what if we just told the truth – all of it, without defense, without excuse, without blame, took responsibility for the consequences, were transparent in all of it, and offered to make things right? Twenty years ago the question would have horrified me; ten years ago I would have dismissed it as utopian, but today. . .
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Berlin, Leonard. “Will Saying ‘I’m Sorry’ Prevent a Malpractice Lawsuit?” The Practice of Radiology 187 (July 2006): 12.
Berlinger, Nancy. “Broken Stories: Patients, Families, and Clinicians after Medical Error.” Literature and Medicine 22, no. 2 (Fall 2003) 234.
Bibas, Stephanos and Richard A. Bierschbach. “Integrating Remorse and Apology into Criminal Procedure.” The Yale Law Review 114, no. 1 (October 2004): 85-148.
Cohen, Jonathan R. “Advising Clients to Apologize.” Southern California Law Review 72 (May 1999): 1009-1069.
deQuervain, Dominique, Urs Fischbacher, Valerie Treyer, Melanie Schellhammer, Ulrich Schnyder, Alfred Buck, and Ernst Fehr. “The Neural Basis for Altruistic Punishment.” Science 305, no. 5688 (August 2004): 1254-1258.
Law Commission of Canada. “Apologising for Serious Wrongdoing: Final Report for the Law Commission of Canada.” Online, available at: http://www.lcc.gc.ca/research_project/99_wrongdoing-en.asp#V
Maise, Michelle. “The Aims of Restorative Justice.” Cardozo Journal of Conflict Resolution 5, no. 1(October 2003).
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________. “Apology within a Moral Dialectic: A Reply to Professor Robbenolt.” Michigan Law Review 102, no. 5 (May 2005): 1010-1017.
Tavuchis, Nicholas. Mea Culpa: A Sociology of Apology and Reconciliation. (Palo Alto: Stanford University Press, 1991): 20.
Umbreit, Mark S., Robert B. Coates and Betty Vos, “Victim-Offender Mediation: Three Decades of Practice and Research,” Conflict Resolution Quarterly 22, no. 1-2 (Winter 2004): 292-294.
Wellikoff, Ilyssa. “Victim-Offender Mediation: On the Way to Justice.” Cardozo Journal of Conflict Resolution 5, no. 1. quoting Lorenn Walker. “Conferencing: A New Approach for Juvenile Justice in Honolulu,” Federal Probation Journal 66, no. 1. (June 2002).
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