Litigation means never having to say you’re sorry.
Unless, some say, the case goes into mediation. Then, the statements of regret that the guilt-ridden need to say and that their victims need to hear are not admissible in court, and can be expressed, for the benefit of everyone.
Lawyers are discovering that those two little words “I’m sorry” sincerely expressed at just the right time, can turn a mediation around.
Mediators, plaintiff’s attorneys and defense lawyers are careful not to overstate the importance of an apology. Sometimes, where liability is at issue, an apology could be tactically self-defeating, even in a protected mediation setting. And as one source said, “One-third of ‘I’m sorry’ isn’t going to pay my bill.”
But, they say, “I’m sorry” can make a difference in getting a case settled. It can make the plaintiff more receptive to offers. It can trigger emotional healing of both parties after a trauma. It can help people with an ongoing relationshipdivorcing parents, business partners, employers and employeesbury the hatchet.
In fact, even the most hard-driving plaintiff’s lawyers are beginning to recognize the power of an apology, said John B. McCammon of the McCammon Mediation Group.
Harrisonburg lawyer and mediator Lawrence H. Hoover Jr. recently attended a conference on “The Role of Forgiveness in the Law” at the Fordham University School of Law in New York City.
There, an international faculty of lawyers, mediators and criminal justice professionals talked about a spectrum of “restorative” remediesof which apology is onethat can be used in both criminal and civil cases.
Hoover has a special interest in that concept, because Harrisonburg’s courts participate in a “Victim Offender Counseling” program, offered through the Community Mediation Center. (See sidebar.)
In American culture, apology is often discouraged by lawyers and insurance adjusters, because it can be taken as an admission of liability or guilt, Hoover said.
One of the ground rules of mediation, however, is that whatever disclosures are made are not admissible.
Recipe for regret
What constitutes a good apology? That’s hard to quantify, Hoover said. “It’s not the kind of thing we learn about in law school, because it’s so hard to get a grip on.
“What [people] care about is a heartfelt apology. It might have to pass a smell test. You know it when you hear it, when you see it.”
Lawyers agree that Americans have become cynical about apologies, based on numerous mea culpas that don’t pass the smell test, by athletes, performers and even the current President. “If it’s not perceived as a heartfelt apology, it’s like, ‘Oh, come on. Give me a break,'” Hoover said.
An example: Comedian-actress Roseanne Barr, responding to President George Bush’s criticism of her rendition of the national anthem at a San Diego Padres’ baseball game, said, “Well, I’m sorry I didn’t sing so good, but I’d like to hear him sing it.”
As for President Clinton’s series of apologies over the Monica Lewinsky affair, “Many people think, ‘He didn’t mean it, and, by the way, the substance of what he said was an airball, anyway,'” McCammon said.
Hoover said one technique for establishing communication between participants in a mediation is “recognition,” in which a party recognizes the situation the other party is in, and expresses his understanding of it in a way that lets the other party know of his concern and sympathy.
While that expression is not in itself an apology, it is an important step in coming to the point of apology, he said.
Another component would be remorse, he said.
McCammon said sincerity is essential. Without sincerity, the apologizer doesn’t merely come up with zero advantagehe has lost ground.
McCammon constructed what he described as a “totem pole” of degrees of apology, with the highest levels taking the greatest degree of responsibility:
1. “I’m sorry you got a broken arm.” “Big deal,” McCammon said. “But that’s better than nothing.”
2. “I’m sorry you broke your arm. I’m sorry that my driving caused it.”
3. “I’m sorry I caused an accident that broke your arm. I was in the middle of rush hour on the Beltway, and I was trying the best I could, but I made a mistake.”
4. “I am so sorry I caused the accident that broke your arm. I have nothing to say except mea culpa. I was exhausted. I’d been driving eight hours, and I knew I should have pulled over.” This apology, which McCammon called “the whole nine yards,” carries the ingredients of acknowledgment of the person’s injury, accepting personal responsibility and sparing the other party the hedging and rationalizations that undermine sincerity.
Mediator Robert L. Harris, a former judge who now has 800 mediations under his belt, said an apology is good “if it’s sincere and not just something that’s contrived to help the problem go away.”
Timing is everything
“An apology is extremely helpful if it comes at the right time and it’s perceived to be sincere,” Harris said.
Ideally, the wronged partyor the person who perceives himself wrongedshould have a chance to ventilate “and sort of disgorge their ill feelings” before the apology, he said.
“‘I’m sorry’ can’t come in the very beginning,’ said Debbie Dickerson Nussbaum of Arbitration Associates. “They have to vent a little of the anger. They have to have somebody listen to them. And [the apology] shouldn’t come from the attorneys.”
A well-executed apology can be effective even if the apologizing party is not entirely to blame for the situation, Harris added. “Sometimes people feel that they’ve been harmed when they haven’t been harmed. Perception to them is reality,” he said. If the other side can say ‘I’m sorry’ on some level, they can restore the perceived “victim’s” self esteem. “It diffuses the animosity.”
James C. Shannon, a Richmond lawyer and mediator who primarily handles personal injury cases, warned that apology is not a “tactic.”
“I don’t think you want to orchestrate something like that,” he said.
What areas of law?
McCammon said that, as lawyers gain more experience with alternative dispute resolution, they are seeing the constructive role of regret as they rarely see it in court.
“Even the hard-driving, hard-bitten trial lawyer, crusty as he or she may be, instinctively understands that this isn’t a cupcake philosophy,” McCammon said.
“It is basic human behavior that is valued, and not only at the conference in Fordham,” he added. “It’s not a sanctimonious, lofty principle that has no application. It’s real.”
Dickerson said she has found apologies particularly effective in employment cases. She remembers when a manager in a case she was mediating told the complaining employee, “I’m sorry.”
“The healing process started almost immediately. It was like someone turned a light on,” she said.
Divorce mediations, also, can go smoother if a party is contrite, Dickerson said. And so can neighborhood disputes. An example: If a falling tree damages a neighbor’s fence, a property owner can say, “I’m sorry. I’ll make amends. I’ll pay for your fence that my tree broke. I’ll fix it and make sure it never happens again.”
The money value
How much is an apology worth?
Only Dickerson would place a dollar amount on it. “Those two words are worth hundreds and hundreds of dollars,” she said. “‘I’m sorry’ is as good as check in some cases….
“It takes a stronger person to say ‘I’m sorry’ and to mean it than to write a check.”
McCammon said the value is more qualitative than quantitative. In some cases, “it would make more likely a resolution.”
Harris said an apology brings a different, non-monetary value to the table. “What happens sometimes perhaps there isn’t enough money to bring closure,” he said. Or, “lots of times, suits are instituted because one side was too insensitive early on.”
When an apology is proffered, “That removes some of the venom or some of the animosity,” he said.
Frank N. Cowan, a Chesterfield County lawyer who mediates and represents defendants and plaintiffs in personal-injury cases, sees the effect of apology as more subtle in most cases. “It may set the atmosphere, to help get a case resolved,” he said. “It depends on the case.”
Apologies sometimes result in the parties and attorneys’ engaging in “soft talk” as opposed to “hard talk” in mediations. But a lawyer or mediator should not be seduced into not doing his job by an emotionally appealing apology, Cowan warned.
If his plaintiff client is moved and more receptive, that does not absolve him of his responsibility to get the best settlement he can. The lawyer still must take, when necessary, a “blunt approach”look the opposing party in the eye and give a frank summary of his case, take a stand and advise his client appropriately.
Cowan’s theory is that people in mediation don’t settle cases out of sentiment or “closure.” They settle because of “the uncertainties of the future,” should the case go to court.
Alexandria plaintiff’s attorney Gerald A. Schwartz has a similar view. “The bottom line in a mediation is not the apology, but obtaining an adequate recovery,” he said. “An apology is nice, but the monetary settlement is what a devastated client needs to carry on, he said.
Stories of reconciliation
Most lawyers and mediators have stories about how an apology turned a case around.
McCammon recalled a med-mal case, involving a misdiagnosis of cancer.
The scenario: The woman who had been misdiagnosed hadn’t spoken to the accused doctor for a year, while her lawsuit was in preparation. “She felt abandoned, invaded, wronged.”
When the doctor came to the mediation table, he looked his former patient in the eye and said how sorry he was that he had not caught the cancer. “That ‘I’m sorry’ just turned the whole mediation 180 degrees around,” McCammon said. “I don’t know if it changed the numbers or not.” But it enabled the woman to attend to resolution of the conflict without going to court.
Shannon also had a story:
He was defending a man who had run a stop sign and struck a car, killing a child inside. As the lawsuit progressed, the child’s mother, who had been driving, had refused to deal with the issue of settlement. “No amount of money could compensate her. She couldn’t allow herself to reduce her child’s life to money,” Shannon said.
Under most circumstances, only the man’s insurance company representative would have come to the mediation table. But Shannon and the mother’s attorney discussed her disassociation with the process, and Shannon sensed that his client needed to express his deep sorrow over the incident.
So the man who had run the stop sign came to the table, too. He looked the mother in the eye and said how sorry he was. “He told her he was a grandfather himself, and knew what the child must have meant to her,” Shannon said. “He could barely get the words out. He was just torn up. He just sort of blurted out.”
Then he was finished, and he stood up. “You all just excuse me,” he said, and left the table. He didn’t come back.
But the apology had an effect. The mother came to the table psychologically. The apology “allowed her to listen to her lawyer, and let the case be settled. This allowed her to let the process work.”
Shannon’s conclusion: Apology “really can make the difference between something being forced into the courtroom,” and settled outside of court.