Tag Archives: apologies

Apologize When You Make a Mistake


I’ve written on a couple of occasions about apologies (see here and here). In one post, I said that lawyers often don’t recommend apologies because of the potential legal risk.

But when you’re wrong, you’re wrong. Sometimes, an apology is the best solution.

United logoTwo situations have been in the news recently which have caused public relations disasters. In one, United Airlines bumped a man from his seat on a flight because the airline needed the seat to transport crew to another airport to fly another plane. The passenger refused to deplane, and he was injured when airport security physically removed him.

The United Airlines CEO apologized, but his apology was deemed insincere.

Sean_Spicer_(32293609264)_(cropped)

Press Secretary Sean Spicer. Photo by Gage Skidmore.

In the second situation, Sean Spicer, President Trump’s Press Secretary, compared Assad of Syria to Hitler, but said that while Assad had gassed his people, Hitler had not—obviously forgetting the millions of people Hitler had gassed in concentration camps.

Mr. Spicer apologized, but his apology was deemed insufficient.

Mr. Spicer’s error was a mistake of fact. He knows full well—and he should have remembered—that Hitler was responsible for the Holocaust. I’m not a Trump fan, nor a Spicer fan, and I cringed when I heard Mr. Spicer’s remark. But I assume his mind deserted him for a moment. Within hours he apologized for his mistake.

In my opinion, that should be the end of the story. But opponents of the Trump Administration do not seem willing to let it go. How can anyone forget the Holocaust? they ask. Well, people’s brains do stupid stuff sometimes. Hasn’t yours?

Shouldn’t we be forgiven our stupidity?

In my opinion, the United Airlines situation is the harder case. This was not a simple error of fact. It was a matter of corporate policy—United bumps passengers when their seats are needed for smooth operation of the airline. And airlines are permitted by law to physically remove passengers from airplanes when the passengers are argumentative or combative.

But somehow, humanity got lost in this situation. A doctor in his sixties, who said he needed to see patients the next day, who had paid for a ticket and had a valid boarding pass, and who was already seated in his assigned seat, was injured when he protested the airline’s random revocation of his seat assignment. (I’ve read conflicting reports on whether United had the right to bump someone who was not technically on an “overbooked” flight.)

Then the CEO said the airline would “re-accommodate” the passenger. This word choice was unfortunate—the man had not been accommodated in the first place, so how could he be re-accommodated? How would “re-accommodation” help his injuries? In addition, the initial corporate statement blamed the passenger for being disruptive.

I think back to the post I wrote about a 2012 post in Contented Cows, in which the author stated that when you need to take accountability for a mistake, you should

  • Apologize quickly and without excuses or weasel words, and
  • Clean up the mess you made.

In this case, Sean Spicer apologized directly, without much in the way of weasel words, though he perhaps tried to explain himself too much. He is trying to clean up the mess he made, and we should allow him to do so.

By contrast, United Airlines made excuses, used weasel words, and shifted the blame in its initial attempt to apologize. It will probably take them a long time to clean up the mess they made.

When have you had to apologize? How well do you think you handled it?

 

 

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When Are Apologies Worth the Risk?


MP900387517I 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.

MP900341467In 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?

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