I recently listened to a webinar sponsored by the American Bar Association section of Dispute Resolution on the power of apologies. The speaker was Ken Cloke of the Center for Dispute Resolution.
I’m familiar with apologies in the context of mediation, but beyond mediation, most of the literature on using apologies to resolve disputes is in the medical and domestic relations fields, not in the context of more general litigation or in resolving non-legal disputes. This webinar gave me the opportunity to reflect on when apologies might be helpful in a variety of disputes.
Mr. Cloke said that to be effective, apologies must
- Contain an acknowledgment or recognition of the harm that was done,
- Include a sincere expression of regret, and
- Not offer any defenses or rationalizations for what was done.
According to Mr. Cloke, the apology must be be authentic and cannot legally hedged or circumspect. If the apology is defensive, it could be worse than no apology at all.
Before I go further, I want to make it clear that most of the thoughts in this post are my own. Please do not attribute anything to Mr. Cloke, and I apologize if I misstate anything he said.
1. What Impact Will It Have on Pending or Potential Litigation
Most lawyers—and I am one—are leery of apologies. Lawyers typically advise their clients not to offer apologies. There are many reasons for this reluctance, the foremost being that if a party to a lawsuit issues an apology that admits any facts or accepts any responsibility for wrongdoing, it can be an admission against interest which is then admissible as evidence in the lawsuit.
But there are exceptions. Most notably, if the apology is offered in the context of settlement discussions or mediation, then it is usually not admissible. Also, many jurisdictions now have statutes that specifically state that statements of sympathy for injury to another person is not admissible as an admission against interest. Some of these statutes are limited to the medical context (i.e., a doctor expressing sympathy that a family relative died), but others are broader.
For example, Missouri now has a statute, Section 538.229, that states:
“The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. However, nothing in this section shall prohibit admission of a statement of fault.”
This is similar to the law in many U.S. states. By contrast, in Scotland, the law is much broader and states:
“In all civil proceedings, an apology made outside the proceedings in connection with any matter – (a) is not admissible as evidence of anything relevant to the determination of liability in connection with that matter, and (b) cannot be used in any other way to the prejudice of the person by or on behalf of whom the apology was made.”
In Scotland, then, a person who might be sued has far more leeway to apologize than most potential defendants in the U.S.
Before considering an apology, it is critical that you know what the law is in your jurisdiction. Consult an attorney if the matter is already in litigation, or even if you suspect that litigation could arise from the conduct for which you might apologize.
2. How Far Can You Truthfully Go?
It is also important to think about how far you are willing to go in offering an apology. Ken Cloke made it clear that apologies that are not deemed sufficient by the other side can in fact make matters worse. It is critical that the apology be sincere and show your understanding of the impact your actions had on the other party.
But are you willing to apologize unequivocally? Maybe you disagree on the facts with the person requesting an apology. For example, if you are accused of running a red light, but truly believe you had the green light, you can’t very well apologize for running a red light and causing the accident.
By contrast, if you acknowledge you were driving inattentively, and you know your inattentiveness contributed to the accident, perhaps you can apologize for your inattention. But such an apology might not go far enough, if the other person believes himself to be wholly innocent and you believe his inattention contributed to the accident also. As stated above, your apology must not be hedged. Getting defensive during your apology is probably worse than silence. Trying to apportion blame is probably not a good idea, unless you are responding to an apology to you, in which case accepting part of the blame might help resolve the matter.
So before you apologize, think about whether you understand how what you did impacted the other person. Do you regret what you did? Do you only regret how the other person experienced what you did? Your apology must be authentic.
One good question to think about that Mr. Cloke suggests is: “If I had 20/20 hindsight, would I still have done what I did?” If not, maybe you have a basis for apologizing.
But again, work with your lawyer so you know the impact on any legal claims.
3. Is There a Relationship At Stake?
I believe there is a place for apologies in disputes, particularly when there is an ongoing relationship between the parties. That is probably why apologies are often helpful strategies in domestic relations matters, particularly where a divorcing couple will need to continue to parent together for many years.
In the business context, relationships might also need to survive the current dispute. Sometimes an apology can help resolve an employment dispute. A senior manager might say, “I am sorry that your supervisor harassed you. That was contrary to our policy, and should not have happened. We are committed to providing you and all employees with a safe place to work, and he is no longer employed.”
Or important supplier or customer relationships might be salvaged with a strong apology. For example: “I am sorry that our supplies were delivered to you late last month. We didn’t live up to our commitment, and we recognize that you in turn missed deadlines with your customers. We have learned from our mistake and are instituting improvements in our order processing.”
So, particularly if you are in a dispute with an ongoing partner, discuss with your colleagues and attorney whether you can show that the relationship is more important to you than saving face or winning a courtroom battle. Take responsibility for your errors.
In summary, consider apologies as one way to resolve disputes, when the dispute is new and perhaps has not yet escalated. But be careful, and talk with your attorney first.
Have you ever found an apology to be helpful in resolving a dispute?