By Mediator Lee Wallace
In last week’s blog I talked about the fact that an apology can have a powerful effect at mediation (or in life). A sincere, heartfelt apology may help the parties settle a case that could not otherwise have been resolved at all, may save the considerable expense of going to trial, and may spare everyone the risks and stress of trial. But the apology also has a power unrelated to money, because it addresses the emotions that cannot be addressed by the litigation.
Despite that potential, an apology is not the cure-all for difficult litigation. Sometimes an apology would be ineffective, or even inappropriate. Here are six factors that can help you decide whether you should apologize at mediation in your case.
1 — Does the other side have hurt feelings?
If the other side has hurt feelings, you should at least think through the issue of apologizing. Some purely corporate disputes do not have a true, emotional side, and in those cases apologies are not relevant. Most disputes, however, do.
2 — Is your client actually sorry?
While in general apologies are underused at mediation, sometimes they are, quite simply, inappropriate. When your client in fact does not feel sorry for what happened — for example, when the defendant does not believe he is the one who harmed the plaintiff — it may actually hurt your case if the client mumbles a clearly-insincere apology. Heartfelt apologies help, but casual, insincere ones may insult the plaintiff.
3 — Can your client make a sincere-sounding apology?
Consider whether your client has the “people skills” to communicate a sincere apology. If your client is going to apologize, you want it to be effective. If an apology comes across as insincere, it may backfire.
Two public relations professors at California Lutheran University studied several apology videos posted on Youtube, focusing on the comments that people made below the video. They found just what you might suspect: “Perceptions of apology sincerity were related strongly to forgiveness,” whereas “perceptions of insincerity related to commenters withholding forgiveness.” Jean Kelso Sandlin & Monica L. Gracyalny, Seeking Sincerity, Finding Forgiveness: YouTube Apologies as Image Repair, 44 Pub. Relations Rev. § 4.3.4 (Sept. 2018).
4 — Has your client taken steps to make sure that the conduct will not happen again? (Bonus.)
Apologies are most effective when the person apologizing can give a concrete explanation of what went wrong and what steps are being taken to make sure that it never happens again. It makes good sense to have your client apologize when he is prepared to back up his words with actions — or even better, already has done so.
Don’t write off an apology just because this factor does not apply, however. For example, in cases that involve serious injuries, the defendant may want to express sympathy for the plaintiff’s suffering, even if the defendant does not acknowledge that he is the cause of the injuries.
5 — Is the plaintiff going to be able to accept an apology?
I have had mediations where one party was so upset with the other that it did not even make sense to put them in the same room for the opening statement. If you know for a fact that the other side is not ready to accept an apology, it may not make sense to give one. Be careful, though, that you do not underestimate the power of a sincere apology when feelings run high.
6 — Does your client need to apologize for his own sense of wellbeing?
One of my law school classmates was a priest, and his clerical mentor had been assigned to work with the defendants at the Nuremberg trials. Under the trial rules, the Nuremberg defendants were not permitted to confess and plead guilty. The mentor emerged from the experience with a firm conviction that confession was good for the soul, as the Psalmist said, and that keeping the defendants from confessing had been destructive and morally wrong.
Of course, your client is not being accused of anything remotely like the allegations at the Nuremberg trials. My point is simply that an apology is not just for the benefit of the plaintiff; it also can help the defendant. If your client is toting around a soul-crushing amount of guilt, he may need the apology as much or more than the plaintiff. Just be sure to prepare him for the fact that the plaintiff may not respond, at least overtly, to the apology.
It’s important to remember that mediation is a one-shot chance at making an apology that will not be admissible at trial. If you believe it may help and that your client can make an effective apology, it makes sense to try it.
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.”