By Mediator Lee Wallace
Apologizing is all the rage these days. Stars apologize. Musicians apologize. Even companies apologize. Anybody and everybody seems to be on the “I’m sorry” bandwagon.
Mediation is one of the places where apologies are supposed to take place. Since the mediation is part of a settlement discussion, a party can apologize without it becoming evidence at trial.
But as a mediator, I find that defendants often miss a golden opportunity, either because they do not apologize at all or because the apology they give falls flat — or worst of all, offends the plaintiff. In future blog posts, I’ll talk about how to — and how not to — apologize.
Apologizing Becomes “A Thing”
Back when I was a young associate, I threw out the idea that we probably could settle a particular case if our client was willing to apologize. The idea was greeted with abject horror. One person in the meeting choked out, “That’s NOT going to happen!” Instead, we went through a two-week trial in a neighboring state. Our client had to pay two lawyers for the trial time, plus hotel and travel expenses. Additionally, several key employees of the company lost days of work because they had to travel to testify at trial. It’s hard to say who won the case. The jury rendered a verdict against our client, but then, it wasn’t as large as it could have been.
Since then, lawyers and indeed society have come to appreciate the simple and beautiful power unleashed by such a very few words. Made appropriately, an apology can do something a lawsuit can never do: change the way people feel, not just how much money they have. In Georgia, the medical profession even lobbied the legislature to be able to apologize without the statement coming into evidence in medical malpractice cases, and the legislature passed O.C.G.A. § 24-4-416.
How an Apology Can Help Your Client
A heartfelt apology can have tremendous benefits for all of the parties. The parties enter the litigation with a complex set of personal feelings about each other and about the dispute. The problem is that the litigation process has no way to deal with the personal, emotional side of the dispute. Both facts and feelings get fed into the litigation machinery, but the only thing that can possibly come out the other side is a verdict that says whether one side has to pay the other side money.
The beauty of a sincere apology is that it touches the human side of a dispute that a jury verdict cannot reach. It can have a practical effect, helping the parties reach a settlement that otherwise would not be possible, and sparing both parties the time, expense and uncertainty of trial — but it also has an emotional effect that a trial cannot duplicate. An apology may even heal a broken relationship.
When to Use An Apology
Not every case is appropriate for an apology. How do you know whether yours is? Stay tuned for my next blog:
Should You Apologize at Mediation? Ask These 6 Questions.
What Attorneys Are Saying About Mediating with Lee:
“Lee had the intellect necessary to get a really difficult case settled even where the odds were stacked against her. I would use Lee to mediate any of my cases.”
“Lee helped get a case settled that I never would have imagined would have settled that day when I walked into that mediation. Opposing counsel and I had drastically different views of the case, as did our clients. Yet, with Lee’s knowledge, experience, and preparation, she was able to lead us to a resolution that my clients were satisfied with. I look forward to using Lee again in the future!”
“Lee’s calm reasoning and creative solutions helped us to resolve a challenging case when one side was willing to walk away and the other side would not budge on their number. She worked hard to find a compromise when none seemed possible.”
“Lee brings to her mediations a wealth of experience from which all parties can draw. Her impressive ability to marry the case facts to negotiation strategy aided in the just resolution of our case.”
“Lee was prepared, having read all the documentation I had forwarded her pre-mediation, and she did an outstanding job in getting a difficult case settled. I look forward to using BAY Mediation and Lee in the future.”
“Lee Wallace helped us resolve a case that I did not believe could be resolved. As an initial challenge we had multiple parties, several of whom had to join by remote video conference. The details of the case were also challenging [and] there were widely disparate views regarding case value. Lee was resolute, objective, and prepared. While her 30 years of trial experience and breadth of knowledge on a variety of legal issues were invaluable, her kind and logical demeanor got this case resolved. I must confess at one point I was ready to storm off myself in frustration at the other party, but Lee encouraged me to stick with it and keep working. I’m so glad she did!”
“It was a pleasure working with Lee T. Wallace during the mediation process. She pushed both sides to continue to fight through the process and not give up. And because of her vigorous determination I was able to settle my client’s claim to their satisfaction.”
“Lee did an effective and efficient job getting this case to a successful resolution. She takes a low key approach to make sure each side does not feel undue pressure to increase their offer or decrease their demand. I will definitely use Lee for future mediations.”