Consider a case where plaintiff is suing her former employer because, after 10 years of good work, she was "let go." The company says it's because of poor performance, but she claims her discharge was retaliation for refusing her supervisor's sexual advances. Several other women have since reported the same supervisor's conduct towards them as well, leading to his termination.
At mediation, Defendant is willing to meet plaintiff's money demand but refuses to apologize or admit wrongdoing. Should the plaintiff take the money offer? How much should an apology be worth to her?
Lawyers often grapple with how to incorporate apologies in mediation, possibly because candid expressions of regret are less about the law, and more about providing an injured party an emotional bridge to forgiveness, which is often where healing, reconciliation and personal closure begin.
Forgiveness and reconciliation are not the same things, though. Forgiveness is a choice to release the wrongdoer from the emotional debt owed to the injured party. It does not excuse, explain or exonerate the wrong done. It is a personal choice to free oneself from unresolved anger and hate.
Reconciliation is choosing to mend the relationship. It is often gradual, requiring trust to be rebuilt. Sometimes restoration isn’t possible or even advisable. But sometimes, restoration is healing, perhaps even transformative. You don't need to be friends with the wrongdoer to forgive them, but true reconciliation involves an attitude of forgiveness.
In short, apologies are complicated. Resolving a hurt or expressing regret for causing harm can be unique and personal depending on where the plaintiff is at in the healing process and what the defendant is willing or able to offer. An apology made at the right time and manner can be transformative. But a cursory, passive statement of regret that lacks genuine remorse can do more harm than good.
Given how complex the process of finding closure can be, here are some questions that you might ask yourself when crafting an effective apology in mediation:
What does your client need?
If you represent the injured party, what does closure mean to them? In the case above, does the plaintiff want her tormentor to answer for his actions? That might be difficult if he was fired from the company. The employer no longer controls his behavior and even so, what good is an apology that lacks genuine remorse? Maybe, at the end of the day, plaintiff simply wants some acknowledgment that more should have been done to protect her. In that scenario, your client could craft a suitable apology that is sincere and thoughtful.
Once you’ve considered how an apology can bring your client closure, bear in mind that expressions of remorse can make both sides feel vulnerable. Seeking an overly broad apology for unrelated injuries could chill further dialogue. If you can, help your client navigate the hard work of self-reflection before asking for an apology that is specific and personal.
What can your client give?
If your client is open to apologizing, help them outline what they are apologizing for. Whether or not they knew of the ex-supervisor’s predations, what could they have done better or what improvements can be made in the future? Perhaps highlight any changes already made. Statements like, “We regret that mistakes were made,” sound cold or dismissive, but a tailored, specific and genuine apology stands a better chance of being well received.
How can you and your mediator work together to manage your client’s expectations?
When parties are deep into their own ideas of the “right” apology, it’s tempting to throw up your hands in exasperation because, let’s face it, you didn’t sign up for this when you decided to be a lawyer. Although lawyering can feel like chaperoning a group of squabbling teenagers, don’t lose hope! Here are the two basic components of a good apology and some questions to ask yourself before mediation:
1. Feelings. Sentiments can change throughout the case as clients – even non-injured parties – approach mediation. Ask open-ended questions about what your client ultimately needs from this process. Does the injured party want closure or revenge? Can they still forgive without an apology? On the other hand, does the non-injured party respect the value of an apology and understand the need for one in this case? You can alert your mediator of your clients’ views ahead of time so she can help you navigate potential roadblocks for settlement.
2. Words. Does the apology need to include “I’m sorry,” or can it focus on improvements that have been or will be made in the future? Drafting a good apology is more about the process than the end result. By working out the language with the mediator, both parties can shift the focus away from abstract ideas and towards solving a concrete problem. A mediator can also ask your client the deeper, reflective questions that lawyers tend to shy away from.
In closing, by helping your client fashion a sincere and thoughtful apology, you may empower the parties to achieve in mediation a far-reaching kind of closure that extends beyond the immediate resolution of the case.
