ABOUT APOLOGIES ~ PART II

If I have anything to apologize for, then I'm sorry.

“Never apologize and never explain – it’s a sign of weakness.”  John Wayne

“An apology is the superglue of life.  It can repair just about anything.”  Lynn Johnston

With all due respect to The Duke, I don’t think he ever tried to mediate a legal dispute.  If he had, I doubt his philosophy would have worked.  In my last post, I suggested that an apology from the party or parties perceived to be at fault could help ease the strain of monetary negotiations, or pave the way for future business relationships.  I cautioned, though, that there are right and wrong ways to apologize, and I’d like to expand on that thought here.

First and foremost, an apology must be unconditional .  Without naming names, the entertainment and sports worlds are filled with celebrities who find themselves saying things like, “I apologize to anyone who may have been offended by what I said,” or, “If I offended anyone by my actions, I am deeply sorry.”  Qualifying words like “if”, “but”, or “may” tie the size (and sincerity) of the apology to the number of people offended, or to the extent to which a given group of people was offended.  Thus, if no one was offended, there is no one to whom to apologize, and therefore no regret.  Similarly, if only a few people are insulted, the apology is directed only to them, and the regret is limited accordingly.  If a wider swath of people are offended, but only a little bit so, then the offender is likewise only a little bit sorry.

Closely tied to the requirement that an apology be unconditional is the requirement that one actually apologize for one’s actions, not just for the consequences of those actions.  In other words, an effective apology is an expression of regret for being a cause of injury or damage, as opposed to just regret for the injury or damage itself.  Consider, for example, an intersection collision wherein the defendant ran a red light and the plaintiff (who was not wearing a seatbelt) was seriously injured.  There may be fault on both parties.  Will it help in the mediated negotiations if the defendant says to the plaintiff, “I’m sorry you were injured in the accident?”  Well, it may help to some extent, because at least the defendant is acknowledging that the plaintiff was in fact injured and isn’t malingering.  But perhaps the plaintiff would be more amenable to negotiating with a defendant who says something like, “I am truly sorry that I caused any part of this.  I hope we can work things out today, but regardless of what happens in this mediation, I just wanted you to know how I feel.”

There are some subtle but important differences between the two apologies above.  To say, “I’m sorry you were injured” is like saying, “I’m sorry you’re sick,” or “I’m sorry your golf game was rained out.”  Neither implies any acknowledgement of responsibility, just generic regret over the condition in which the plaintiff finds herself.  In the second example, however, the defendant actually apologizes for “causing” something.  He apologizes for his actions, not just their effect.  The defendant has also uncoupled the apology from the negotiations or any potential settlement by expressing his feelings “regardless of what happens in this mediation,” thereby making the apology unconditional.  Finally, by being “sorry that I caused any part of this,” the defendant has not admitted one hundred percent fault; to the contrary, he has left open the possibility that others (such as the plaintiff) may have also caused or contributed to the injuries.

Last but not least, try to avoid the infamous “political” strategy of saying, “Mistakes were made.”  Speaking in the passive voice, and thus not identifying who made these mistakes, sounds more like damage control than an apology.  At most, it is a suggestion that the unidentified maker of these mistakes may face some unidentified consequence.  Likewise, while a party’s attorney is often not an ideal proxy for delivering an apology, it is even more difficult (and thus less satisfactory) for an insurance claims representative to offer a sincere apology, because he or she would be apologizing for someone else’s actions.  After the negotiations have progressed for a bit, it may sometimes be the best course of action for the parties to talk among themselves, in the presence of the mediator but away from their lawyers.

Apologies will not be appropriate at every mediation.  By the same token, however, there is no particular type of case where an apology would never be appropriate.  In those cases where apologies may serve as icebreakers, thereby breaking down walls of misunderstanding, I encourage you to put them in your mediator’s or advocate’s toolbox.