Is an apology helpful in mediation? The short answer is maybe. Apologies can be helpful. They can also be destructive. The art of apology is helping a client and lawyer think through whether the apology will be productive. Hearing the apology in advance is critically important. Determining the timing of the apology is also key. Understanding what they expect to be the result of the apology or the reaction to the apology is also important.
Nina Meierding spent 3 hours on May 7, 2011 explaining “The Art and Science of Apology” to the International Academy of Mediators. We engaged in a rich dialogue of the differences between a full apology, partial apology, and partial and insincere apology. The full apology with no conditions can be powerful. “I am sorry. I made a mistake. It was my fault.” However, the timing and sincerity are crucial.
We also learned about the impact of apologies on settlement and more derivations on types of apologies such as unilateral apology, rapport building apology, and ritual apology. Often one party will seek a bilateral or two way apology. They will apologize and become upset with the other person does not respond in kind. We often see this dynamic in business and personal relationships. Consider the business person who is in a mediation with a former business partner. He may say, “I am so sorry we are in this difficult lawsuit.” He may expect the other side to say, “So am I.” When the other person does not respond as he expects, and instead says, “You filed the lawsuit,” the apology may damage the negotiation.
Nina helped us understand the types of apologies and why people may seek certain types of apologies. She also addressed the following questions: 1. Who should make the apology? 2. Who should be present? 3. Where should it happen? 4. When should it happen? 5. Why should it happen? All of these questions are important to consider and carefully answer in consultation with lawyers and clients.
We learned that we should make no assumptions about apology. We should not assume we understand the purpose of the apology or the intended result. Likewise, we should not assume we know how the recipient will hear the apology. Rather, if the issue is raised, we should explore the goal of the apology, the needs and the expectations of both parties. At that point we can attempt to assist in negotiating a helpful apology.
