Apologies, if from the heart, can be effective in bringing the parties closer to resolution in a mediation or negotiation. There may be some attorneys who feel it’s just a tool to emotionally manipulate the other party to get a lower settlement cost. But, depending on the circumstances, the apology can help make the deal possible, not to reduce or increase the value of the deal.
The science behind apologies is discussed in a recent article of Psychology Today. Writer Guy Winch, PhD., states that an apology consists of three elements,
- A statement of regret for what happened,
- A clear ‘I’m sorry’ statement, and
- A request for forgiveness.
However, to be effective, the apology also needs,
- An expressions of empathy,
- Offers of compensation and
- Acknowledgments that certain rules or social norms were violated.
Some of us are better at apologizing than others and a half-hearted or mechanical apology can increase the animosity a party may feel and ratchet up a desire for retribution.
Thirty-six states, including California, have laws that encourage apologies as a means to reduce the number of medical malpractice or personal injury cases or make them easier to resolve. Under certain circumstances, such apologies would not be admissible as evidence under these laws. An article in the California Bar Journal discusses how the law works, using as an example a medical malpractice case that actor James Woods and his nephew were involved with.
Woods’ brother Michael, 49, died of a heart attack after being admitted to Kent Hospital in Warwick, Rhode Island, for a sore throat and vomiting. A doctor testified that she ordered that he be put on a heart monitor, but that never happened. Testimony also indicated Woods was on a gurney in a hospital hallway for more than an hour when he had his heart attack, according to the article.
The case was resolved, thanks in part to a “change in rhetoric” and a heartfelt apology by hospital president Sandra Colletta.
The result, besides better feelings between the parties, was a financial agreement taking care of his brother’s children and a promise to create a patient safety institute in his brother’s name… The apology “made discussion possible in a case where I had no interest in settlement and was absolutely certain of victory,” Woods said in an e-mail. His entire family, he added, “did agree that Ms. Colletta’s apology was genuine and not a ploy.”
University of Illinois law professor Jennifer Robbennolt is quoted in the article as saying, “The apology fulfills some of the goals that triggered the suit, such as a need for respect, to assign responsibility and to get a sense that what happened won’t happen again. So receiving an apology can reduce financial aspirations and make it possible for parties to enter into discussions about settlement.”
A genuine apology, depending on the circumstances and the parties involved, made during negotiations or mediation may go a long way to resolve a legal claim. Such an apology can have the effect of humanizing the party making it, demonstrating the party is taking responsibility and give the opposing party a feeling of vindication. It may go a long way to bringing the parties together, which is the only way a legal matter can be settled.