As a mediator of employment and multi-party civil disputes, I frequently see cases that should settle but the gears get stuck. Not because the right amount of money isn’t on the table. Not because the requisite confidentiality and other terms haven’t been worked out.  But, because the plaintiff does not feel … heard, vindicated, understood.  Why not? Because there has been no (or insufficient) acknowledgement of what the plaintiff has experienced and no apology for the consequences of defendant’s actions or inaction.

In the film, “A Civil Action,” John Travolta’s character is a plaintiff’s attorney whose client says that she only wants an apology, not money from the defendant corporation.  He tells her, that companies “apologize with their checkbook.” Yet often financial compensation is not the only or even the main interest of plaintiffs.

To increase the chances settling a case during negotiation or mediation, there are two relatively painless and easy-to-use tools: acknowledgement and apology.

Acknowledgement: “Apology Lite”

Acknowledgement can work in a couple of directions. It can start with the plaintiff who can acknowledge his or her contribution to the negative unfolding of facts. The plaintiff can acknowledge external circumstances that might have made it hard for defendant to respond as the plaintiff would have preferred and acknowledge any POSITIVES of defendant’s attempts to set things right. These acknowledgements don’t ultimately detract from defendant’s responsibility, but they might serve to a) soften the defendant’s intractability; b) make the plaintiff seem reasonable; and c) steal the thunder of the defendant’s possible defenses and accusations.

The defendant, on the other hand, can acknowledge what was regrettable in his or her behavior or the circumstances of the past. The defendant can also highlight the positive, reasonable, and worthy behavior of the plaintiff, including the plaintiff’s attempts at negotiation and settlement. Defendant can explain why circumstances, on both sides, perhaps, reduced everyone’s options to less-than-desirable ones.

Apology:  The Gold Standard

The strongest tool is apology, and it belongs in the defendant’s quiver. Sometimes a defendant may want to begin a negotiation/mediation with an apology. This will clear the air, underscore the defendant’s humanity and sincerity. It will sidestep long hours of haranguing about behavior, circumstances, and outcomes that the defendant likely will have to acknowledge or spend overmuch time defending. An apology can fast-track a settlement discussion and allow the parties to focus on exploring interests and solutions.

Often, the defendant’s apology will have been given in stages and repeated at several junctures to be heard and fully digested by plaintiff. Unfortunately, many apologies are not offered until after 4:00 p.m. when defendants are flummoxed by plaintiff’s resistance to their reasonable proposals. Many times, this is when the mediator will strongly recommend that defendant explore a statement of acknowledgement and, optimally, of apology.

One word of caution. It is a recognized need of most plaintiffs to be heard and to have an approximation of “their day in court”.  Therefore, even the most thorough and heartfelt apology may not forestall the plaintiff’s need to narrate and repeat his or her grievance. If catharsis is required by the plaintiff, the defendant should be careful not to truncate or circumvent it. However, much time is spent by plaintiffs trying to “tenderize” defendants so that defendants recognize their errors. This focus on grievance can have the psychological effect of hijacking the plaintiff’s emotions, anchoring the plaintiff’s sense of injury, and undermining the plaintiff’s ability to move on to compromise and settlement.

How to Apologize (and How Not to)

There is an art to apologizing. Note that a half-baked or limp apology (such as apologies beginning with “I’m sorry you were hurt but you have to understand my side of things…”) can be worse than no apology at all.

The most effective apologies will contain:

• A recital of what happened, focusing on the defendant’s actions or inaction;
• A statement of defendant’s responsibility for those actions or inaction;
• Acknowledgement of the impacts on defendant of those actions or inaction;
• An expression of genuine regret for the actions/inaction and the impacts on plaintiff; and
• A concrete offer to repair the harm of those impacts.

Apologies following these steps are much superior to the average apology, will be noteworthy, and will aid settlement.

For extra impact and in extreme situations, consider adding:

• The outline of a plan of action that defendant will take to make sure the actions/inaction and impacts will not occur again; and
• A humble request (not a demand) for the plaintiff’s forgiveness.

Some plaintiffs may require steps 6 and 7 even when their most direct self-interests have been met. This occurs in situations where plaintiff believes that defendant has a disproportionate amount of power and/or must be made to take steps not to engage in the same behavior and cause the similar damage in the future. The request for forgiveness indicates that the defendant understands the seriousness of what has occurred and life-changing consequences for the plaintiff.

What Defense Counsel Should Keep in Mind

Defense counsel can be resistant to their clients making an apology. They can have concerns about admissions, confidentiality, losing negotiation leverage, and setting precedent. Legal protections for admissions or statements of regret or concern made in settlement negotiations vary by jurisdiction. My experience has been that defense counsel research those protections and ensure their clients walk up to but not over any legal line. Often, defendants will be chafing to make some sort of conciliatory or apologetic statement and will struggle with their counsel to find a way to safely do so. Clients’ motivations can be their personal sense of responsibility, as well as their sense that the plaintiff needs to hear an apology to settle.

If it is determined that an apology should be given, defendant must consider two important questions:  1) the form — written or spoken, and 2) confidentiality. I once had a defendant put a price tag on an apology:  $10,000 deducted from the offer for a spoken apology, and $40,000, for a written apology. As you might imagine, this quantification reduced the perception of the defendant’s sincerity. The danger of a written apology is obvious; it can be reproduced and shared. Damages for breaches of an apology’s confidentiality may not compensate for defendant’s precedential or reputational damage.

A request for a written apology can be countered with a joint public statement or a second meeting where the spoken apology will be provided by the individual in the defendant’s company that plaintiff feels is more responsible. In a recent mediation, the plaintiff wanted to hear the apology from the “bad actor,” not from that person’s manager who was attending the mediation. This was arranged to take place later in the same afternoon.

Clients May Value Apologies More Than You Do

Note that there is a disconnect between attorneys and parties regarding the value of apologies.  Civilians often value them highly. They feel that this is part of the reason they brought the lawsuit. Sometimes, they are willing to accept less money if the apology is satisfactory.

Lawyers, however, think relatively little of apologies. Plaintiffs’ lawyers are concerned that their clients will be manipulated by insincere, or worse — sincere — apologies and lose focus on their interests regarding damages and continuing litigation. This difference in perception and the plaintiff’s emotional interests can create a rift between the plaintiff and attorney. Plaintiffs may wonder if their attorneys are motivated by their contingency interests instead of their client’s needs. Generally, this gap can be closed by the sensitive attorney who expresses understanding for the emotional satisfaction of an apology while encouraging his or her client not to lose sight of what is at stake for the client financially or in ensuring that the defendant is made accountable.

How Your Mediator Can Help

While I have focused on the attorneys’ role in acknowledgements and apologies, mediators can facilitate the process in the following ways:

• In pre-mediation conversations with counsel, exploring whether an apology or acknowledgment will be effective with the plaintiff, as well as whether the defendant may consider offering one. Defendants are more amenable to giving an apology when they understand the impact it can have on how much they will pay in compensation.
• During mediation, introducing the idea of acknowledgment or apology directly to defendant. It can be easier for the mediator than for the attorney to broach the subject and explain the benefits. The mediator will have had the benefit of meeting with the other side and gauging the other side’s needs and interests. The mediator can explain how he or she believes it will move the other party past difficult emotions and remove roadblocks to settlement.
• Assisting you and your client in crafting statements of acknowledgement and apology so that they will be maximally effective. The mediator can propose who should deliver the statement(s) and when. Be aware that studies have shown that the most effective acknowledgements and apologies are delivered by the party; his or her attorney; or the mediator, in that order of effectiveness.
• Preparing the other party to receive and appreciate the acknowledgement or apology. If it has been delivered but rejected or devalued by the receiving party, the mediator can help the receiving party articulate the reasons for the rejection.
• Working with the acknowledging or apologizing party to finetune his or her statement to make it more acceptable to the receiving party. The improved statement can be redelivered by the party, attorney, or mediator; whichever seems most effective.
• Allowing processing time for the receiving party to digest the statements.  Often, the mediator will move the discussion on to other issues and return later to determine the impact of the statements, if any.

 Final Thoughts

Attorneys should prepare their clients to give and to receive acknowledgments and apologies.  First, such attorney-client discussions put the client in the right frame of mind to engage in a day of possible compromise. Second, it has been found to be very beneficial for clients to get in touch with their needs and their evaluation of the case. Failure to discuss the goals, interests, needs and motivations on the other side of the table ahead of time makes the attorney’s job much more difficult during the mediation. Many clients are caught off-guard when they are asked to give or receive an apology or acknowledgment. If for no other reason, clients will appreciate their attorneys preparing them for that possibility.