A discussion of apology and its use in alternative dispute resolution

Deanna Foong*
This article begins by explaining what denes an effective apology. It outlines the value of apologies, and discusses some of the impediments to making apologies. Finally, it looks at some legal measures, and mediation as a forum which might encourage apologetic behaviour.

APOLOGY

DEFINED

An apology is an admission of blameworthiness and regret for doing harm;1 it means being sorry for harm one has caused to another and saying so;2 it is a speech act expressing sorrow to the victim for admitted wrongdoing.3 An effective apology is one likely to elicit forgiveness and reconciliation.4 According to Tavuchis, at a minimum, an apology must incorporate acknowledgment of the legitimacy of the violated rule, admission of fault and responsibility, and the expression of genuine regret and remorse for the harm done.5 Alter suggests that an effective apology has ve fundamental components:6 1. The offender acknowledges the wrong, and thus validates the offended persons violated moral sensibilities, assures him or her that the offender understands the impact of the wrong committed, and creates a shared understanding of the wrong.7 2. The offender accepts responsibility for the wrong, thereby restoring the offended persons condence and trust. An apology declares that one has no excuse, defence, justication, or explanation for an action (or inaction) that has insulted, failed, injured, or wronged another.8 Apologies expressing justications, excuses, or explanations9 for wrongdoing without admitting responsibility, do not bring healing and forgiveness.10 3. The offender expresses sincere regret and profound remorse. Expressing sorrow and regret is the centrepiece of an apology.11 It communicates guilt, anxiety and shame;12 it reassures the recipient that the apologiser understands the extent of the injury, and will probably not allow it to
* LLB (Hons) (University of Hull), LLM (National University of Singapore), LLM International (La Trobe University), Master of Conict Resolution (La Trobe University); advocate and solicitor of the Supreme Court of Singapore; Australian lawyer, Supreme Court of Victoria. 1 2 3 4 5 6

OHara EA and Yarn D, On Apology and Consilience (2002) 77 Washington Law Review 1121 at 1131-1132. Tavuchis N, Mea Culpa: A Sociology of Apology and Reconciliation (Stanford University Press, 1991) p 31. Taft L, Apology Subverted: The Commodication of Apology (2000) 109 Yale LJ 1135 at 1154. OHara and Yarn, n 1 at 1132-1133. Tavuchis, n 2, p 31.

Alter S, Apologising for Serious Wrongdoing: Social, Psychological and Legal Considerations, Final Report for the Law Commission of Canada (1999), http://epe.lac-bac.gc.ca/100/200/301/lcc-cdc/apologising_serious_wrong-e/apology.html viewed 28 March 2007.
7 8 9

See Lazare A, Go Ahead, Say Youre Sorry (Psychological Aspects of Apologies) (1995) 28(1) Psychology Today 40 at 42. Tavuchis, n 2, p 17.

Lazare, however, includes an explanation to assure the recipient that the wrongdoing was unrepresentative of the offender: Lazare, n 7 at 42-43.
10 Pavlick DL, Apology and Mediation: The Horse and Carriage of the Twenty-First Century (2003) 18 Ohio State Journal of Dispute Resolution 829 at 850. 11 12

Tavuchis, n 2, p 23. Lazare, n 7 at 43.

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happen again.13 Sincerity convinces the recipient that the offender is worthy of being forgiven.14 The more coerced an apology, the less sincere the regret it conveys.15 For sincerity to be believed, the intensity of the apology must be responsive to the intensity of harm. A brief Im sorry will not suffice if the offender had caused serious harm to the offended party.16 Verbal, face-to-face apologies are more effective than written apologies in conveying remorse and sincerity17 because [w]ritten words conceal the emotion expressed by a tone of voice or tears clouding the eyes.18 A written apology, however, might be useful if precise wording or a written record is required.19 4. An effective apology contains the promise that the wrong done will not recur, thereby providing the much-needed reassurance that the reclaimed moral ground will not be lost. 5. An apology alone is inadequate to restore harmony and repair broken relationships following serious wrongdoing; to be effective, it must be followed by concrete measures such as compensation or counselling.

THE

EFFECTIVENESS OF AN APOLOGY

Timing
There is a tender moment to apologise, which, if hastily foreshortened or heedlessly prolonged, is likely to harden hearts rather than allow for a salutary stirring of sorrow and forgiveness.20 The longer the delay, the more difficult it is to nd the right words, and the less the apology is worth. An early apology can nip possible conict in the bud and avoid litigation by subtracting insult from injury.21 But an immediate apology following a serious offence is demeaning because both parties need time to integrate the meaning of the act and its impact on their relationship.22 Delaying an apology until after the victim has been given voice and understanding may, in certain cases, foster a ripeness to de-escalate conict.23

Nuance
Further, the choice of language, the use of active or passive voice, and the speed in which an apology is uttered affect the effectiveness of an apology.24 Plain, clear and direct language should be used so that everyone can understand it.25 An apology should also respect and reect the recipients culture because culture directly inuences what one expects from an apology. A simple excuse or explanation may satisfy an
13 14 15 16

Govier T, Dilemmas of Trust (McGill-Queens University Press, 1998) p 185. Tavuchis, n 2, p 23. Cohen JR, Advising Clients to Apologize (1999) 72 S Cal LR 1009 at 1017.

Bolstad M, Learning from Japan: The Case for Increased Use of Apology in Mediation (2000) 48 Cleveland State Law Review 545 at 550.
17 18 19 20 21 22 23

Tavuchis, n 2, p 23. Alter, n 6. Cohen, n 15 at 1050. Tavuchis, n 2, p 88. Cohen, n 15 at 1049. Lazare, n 7 at 78.

Frantz CM and Bennigson C, Better Late than Early: The Inuence of Timing on Apology Effectiveness (2005) 41 Journal of Experimental Social Psychology 201 at 206.
24 25

Cohen, n 15 at 1051. Alter, n 6.

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American, but a Japanese person would not be satised unless the apologiser accepts responsibility.26 An apology should be in the rst language of the recipient, since language is integral to culture.27 Part of taking responsibility for ones wrongdoing is to apologise personally for it, except for historic wrongs.28 In companies, top management must lead the way; the stature of the person must be proportional to the harm suffered.29

VALUE

AND SIGNIFICANCE

Various theories have been posited to explain why people care about apologies. According to social psychologists, people value apologies because, to transgressors, an apology ameliorates their negative self-image and restores their reputation; while to victims, an apology restores their social identity, which has been harmed by the transgressor, or partially redresses inequity.30 Emotional commitments favouring apology and forgiveness may also be analysed from an evolutionary economic perspective that such predispositions were acquired from the environment of evolutionary adaptation.31 While the rationale differs, these theories recognise that apologies are valuable. Apology and forgiveness can be value-creating because they offer avenues that can benet both parties.32

Psychological benets
A heartfelt apology can result in an instantaneous erosion of anger and pain, which occurs outside the victims will.33 Apology brings healing and closure.
[W]hat makes an apology work is the exchange of shame and power between the offender and the offended. By apologising, you take the shame of your offence and redirect it to yourself. You admit to hurting or diminishing someone and, in effect, say that you are really the one who is diminished Im the one who was wrong, mistaken, insensitive, or stupid. In acknowledging your shame you give the offended the power to forgive. The exchange is at the heart of the healing process.34

As a corrective ritual, an apology restores the moral imbalance of power between the parties.35
The powerful offer their vulnerability. Through recognition, the humiliated are empowered.36

26 Wagatsuma H and Rosett A, The Implications of Apology: Law and Culture in Japan and the United States (1986) 20 Law & Society Review 461 at 473. 27 28 29 30 31 32 33

Alter, n 6. Alter, n 6. Kiger PJ, The Art of the Apology (2004) 83(10) Workforce Management 57 at 62. OHara and Yarn, n 1 at 1141-1143. OHara and Yarn, n 1 at 1147, 1186. Cohen, n 15 at 1015.

OHara and Yarn, n 1 at 1124. Commander Scott Waddless apology on 28 March 2001 to the families of the lost crew of the Japanese vessel which was sunk by USS Greenville, is cited as an example at 1123.
34 35

Lazare, n 7 at 42.

Levi DL, The Role of Apology in Mediation (1997) 72(5) NY University LR 1165 at 1177; Tavuchis, n 2, p 38; Pavlick, n 10 at 843.
36 Schneider CD, What It Means to be Sorry: The Power of Apology in Mediation, Mediation Matters (17 July 2004), http://www.divorcenet.com/md/mdart-14.html viewed 23 March 2007. Schneider cites the Geiger and Blanchard story to illustrate this point.

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Victims of abuse,37 atrocities,38 and serious crimes39 (and their families) need to receive apologies from their wrongdoers for healing to take place. After retribution, when the wound is not fully healed, forgiveness may be more satisfying than other forms of restorative justice.40 Studies reveal that offenders who fail to apologise may suffer from guilt, and that injured parties who do not receive an apology, or who fail to forgive after receiving an apology, may suffer the corrosive effects of storing anger.41 Offenders may want to apologise to show respect for the injured person and to make amends.42

Social benets
While an apology cannot undo or erase the past, it can change the present it can transmute trespasses and prevent them from becoming permanent obstructions to societal relations through its regenerative power.43 A true apology attempts to restore a relationship to the state it was in prior to injury.44 Coupled with a desire to make amends, it repairs damaged trust, which is essential to interpersonal relationships.45 By expressing concern, an apology reinforces human values implicit in the community, and thus recerties the offender for re-entry into the moral community.46 Offenders are ritually shamed and then reaccepted into the community. Apology as a shaming sanction can have both retributive and deterrent value.47 For example, in Japan, public apologies made by large corporations and government have been used to institute social change.48 In the public sector, the absence of an apology undermines public trust and condence, both essential to good public administration.49
[F]airness sometimes requires the words I apologise or I am sorry for a mistake that was made.50

Economic and strategic benets

Apologies are economically benecial. It may dissuade the victim from bringing a lawsuit,51 or may facilitate settlement, thereby reducing costs.52 Studies in the eld of medicine indicate that many
37 38

Alter, n 6.

See the South African Truth and Reconciliation Commission examples referred to in Hauss C, Apology and Forgiveness in Burgess G and Burgess H (eds) Beyond Intractability (Conict Research Consortium, University of Colorado, 2003), http://www.beyondintractability.org/essay/apology_forgiveness/ viewed 23 March 2007.
39 For an example, see the Brookes Douglas story referred to in Tannen D, Apologies: What It Means to Say Sorry, The Washington Post (23 August 1998), http://www.georgetown.edu/faculty/tannend/post082398.htm viewed 23 March 2007. 40 41 42 43 44 45 46 47

Levi, n 35 at 1204. Cohen, n 15 at 1021. Cohen, n 15 at 1019. Tavuchis, n 2, p 6. Levi, n 35 at 1167. Pavlick, n 10 at 845-846. Pavlick, n 10 at 846.

Latif E, Apologetic Justice: Evaluating Apologies Tailored Towards Legal Solutions (2001) 81 Boston University LR 289 at 313.
48 49

Bolstad, n 16 at 558-559, including the Thalidomide and Minamata examples.

British Columbia Office of the Ombudsman, The Power of an Apology: Removing the Legal Barriers, Special Report No 27 (2006) p 16, http://www.ombud.gov.bc.ca/reports/Special_Reports/Special%20Report%20No%20-%2027.pdf viewed 26 March 2007.
50 51

British Columbia Office of the Ombudsman, n 49, p 16.

Cohen JR, Apology and Organisations: Exploring an Example from Medical Practice (2000) 27 Fordham Urban Law Journal 1447 at 1458; see Cohen, n 15 at endnotes 3-4 for examples.
52

Cohen, n 51 at 1459.

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A discussion of apology and its use in alternative dispute resolution

patients would not have brought malpractice suits had they received an apology.53 Although injury is the primary motivation for malpractice claims, it is the patients personal relationship with the physician, which is a major determinant of whether the patient will sue.54 While an apology cannot substitute for compensation, it can avoid compounding insult to injury, insult that can prevent settlement.55 As described by Cohen, the Veterans Affairs Medical Centre in Lexington, Kentucky (VAMC) has beneted nancially since adopting a policy of assuming responsibility for medical errors in 1987.56 It encourages staff to report errors, noties patients about mistakes, apologises and admits fault, offers fair compensation and further medical care to patients, and attempts to prevent similar occurrences. This has led to more equitable patient compensation than litigation, moderate liability payments comparable to similar facilities, and savings in litigation costs arising from quicker settlement. By encouraging a climate of openness and honesty, whereby medical errors are disclosed and investigated, external apologies have also facilitated systemic reforms. Apologies also may boost corporate morale, enhance an organisations reputation, promote greater customer loyalty and, hence, protability.57 By apologising, corporations can shape public responses, and provide future commitments to responsibility, thereby avoiding the nancial crisis arising from class actions.58 Companies can rectify problems that otherwise might have continued to fester, and avoid the stress and lost productivity that comes when employees focus on covering up mistakes rather than achieving business objectives.59 Even if a lawsuit occurs, apologising may still benet offenders because offenders who apologise often look sympathetic to the court.60 Courts may be less inclined to award punitive damages where the defendant has apologised.61 In defamation actions, an early apology can mitigate the amount of damages awarded against a defendant.62

BARRIERS

TO APOLOGIES

Culture determines whether apologies are used to redress disputes. In Japan, where group membership is an important part of identity, apology plays a major role in maintaining harmonious relationships.63 Many Japanese believe it is benecial to apologise even when the other party is at fault.64 Not apologising for wrongdoing increases the likelihood of a lawsuit in Japan.65 Apology may have a lower priority in the United States where individual autonomy is
53 54

See Cohen, n 15 at endnote 7 for examples.

Kellett AJ, Healing Angry Wounds: The Role of Apology and Mediation in Disputes between Physicians and Patients (1987) Journal of Dispute Resolution 111 at 123.
55 56

Cohen, n 51 at 1459; Cohen, n 15 at 1020.

Cohen, n 51 at 1452-1453. Cohen recognises that while VAMCs regulatory structure is different, and it is questionable whether its success may be replicated, the VAMC experience shows that apologies do not necessarily mean nancial suicide (at 1459). Further, the Open Disclosure Project Legal Review found no evidence to suggest that a similar scheme in Australia would increase litigation rates. See Corrs Chambers Westgarth, Open Disclosure Project: Legal Review (2002) pp 27-28, http://www.nsh.nsw.gov.au/teachresearch/cpiu/CPIUwebdocs/FinalLR858178v1.pdf viewed 26 March 2007.
57 58

Cohen, n 51 at 1473-1474.

Patel A and Reinsch L, Companies can Apologize: Corporate Apologies and Legal Liability (2003) 66(1) Business Communications Quarterly 9 at 18.
59 60 61 62 63 64 65

Kiger, n 29 at 58. Cohen, n 15 at 1022. Cohen, n 15 at 1023; Carroll R, Apologising Safely in Mediation (2005) 16 ADRJ 40 at 47. Carroll, n 61 at 47. Wagatsuma and Rosett, n 26 at 462. Wagatsuma and Rosett, n 26 at 472. Bolstad, n 16 at 560.

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emphasised.66 Americans apologise less frequently than the Japanese,67 and when they do, the apology is more likely to be accompanied with an explanation.68 Gender may affect ones disposition toward apologies. Generally, men are more reluctant to offer apologies than women.69 This may be because women are more relationally oriented than men, and thus may be more disposed towards apologies, which is essential to reinforcing interpersonal relationships. Men, who develop their identities by differentiating themselves from others, may be less inclined to apologise.70 Women say, Im sorry as a conversational ritual,71 while men resist apologising, as they perceive apologies as a sign of weakness.72 However, research may be inconclusive as to whether gender signicantly affects apologetic behaviour.73 It is said that individuals with a high interpersonal orientation are relationship-sensitive and more likely to appreciate intangible, interpersonal gestures like apologies,74 while individuals with a lower interpersonal orientation consider only the strategic advantages of apologising and may regard apologies as nonsensical.75 Also, someone who is egocentric is unable to apologise.77 According to psychologist Aaron Lazare, the most common cause of failure in an apology or an apology altogether avoided is the offenders pride. Its a fear of shame.76 The environment one is nurtured in may determine ones attitude towards apologies. Children may under-utilise apologies or not learn to apologise effectively if adult models are averse to apologies, or offer weak models.78

Admission of liability?
Apologies are often not given because people fear that it would void their insurance policy.79 The fear that an apology would be taken as an admission of liability is recognised as the central barrier to apologising,80 notwithstanding the fact that an apology is not necessarily an admission of liability.81 Admissions, which would include apologies, are normally admissible at trial as an exception to the hearsay rule.82 Exceptions exist but are limited.

66 67 68 69 70 71

Wagatsuma and Rosett, n 26 at 493. Wagatsuma and Rosett, n 26 at 462. Wagatsuma and Rosett, n 26 at 472. Tannen, n 39. Pavlick, n 10 at 851.

Tannen D, Im Sorry, I Wont Apologize The New York Times Magazine (21 July 1996) http://www.georgetown.edu/faculty/ tannend/nyt072196.htm viewed 26 March 2007.
72 73 74 75 77 76 78 79

Tannen, n 71. Cohen, n 15 at 1052-1053; Levi, n 35 at 1184. Levi, n 35 at 1183. Levi, n 35 at 1184. Lazare, n 7 at 78. Lazare, n 7 at 78. Pavlick, n 10 at 850-851.

Cohen, n 15 at 1025-1027 explains that the concern is overstated; Corrs Chambers Westgarth, n 56, p 32, para 4.4.2 concluded that absent an express admission of liability, apologies would not compromise an entitlement to an indemnity.
80 81

Cohen, n 15 at 1027.

Vines P, Apologising to Avoid Liability: Cynical Civility or Practical Morality? (2005) 27 Syd LR 483 at 495-496; see Corrs Chambers Westgarth, n 56, pp 29-38; Rehm PH and Beatty DR, Legal Consequences of Apologising (1996) University of Missouri Journal of Dispute Resolution 115 at 118-119, 129.
82

Federal Rules of Evidence (US), s 801(d)(2); Evidence Act 1995 (Cth), s 81(1).

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A discussion of apology and its use in alternative dispute resolution

Under United States federal law, the exceptions apply where there have been compromise negotiations.83 Thus, apologies made immediately following an injury might not be covered.84 While evidence is inadmissible to prove liability, evidence may be offered for another purpose, such as to prove bias, prejudice or undue delay.85 Evidence of an apology is also not precluded from pre-trial discovery, nor is there a prohibition against disclosure to third parties.86 In Australia, while communications made in settlement negotiations are inadmissible,87 there are also exceptions.88 An apology does not amount to an admission of liability as fault has to be determined, but the facts admitted in an apology could go towards a determination of liability.89 Although some Australian States have provided that an apology is irrelevant to the determination of fault or liability,90 an apology may be admissible for the purpose of establishing the facts contained therein, if some other basis for relevance can be found.91 The Wrongs Act 1958 (Vic) explicitly states that nothing in the section affects the admissibility of a statement with respect to a fact in issue or tending to establish a fact in issue.92 It is therefore unclear whether all aspects of an apology would be protected from admissibility in all cases.93 The extent to which apologies made during mediation are protected depends on the condentiality afforded to mediation communications. In the United States, under the Uniform Mediation Act, mediation communications are condential and, if privileged, are not subject to discovery or admission into evidence in formal proceedings.94 Uniformity ensures that privilege for mediation communications made in one state is respected in other states.95 There are, however, exceptions.96 Nine states have since enacted the Uniform Mediation Act.97 For the other states, existing statutory provisions frequently vary in meaningful respects;98 condentiality has different meaning in different jurisdictions.99
83 84 85 86 87 88 89 90

Federal Rules of Evidence (US), s 408; Cohen, n 15 at 1035. Cohen, n 15 at 1035. Cohen, n 15 at 1034. Cohen, n 15 at 1035. Evidence Act 1995 (Cth), s 131(1). Evidence Act 1995 (Cth), s 131(2) Vines, n 81 at 496.

Civil Liability Act 2002 (NSW), s 69(1)(b); Civil Law (Wrongs) Act 2002 (ACT), ss 12-14; Civil Liability Act 2002 (Tas), s 7; Civil Liability Act 2002 (WA), s 5AH.
91 92 93 94

Vines, n 81 at 496-497. Wrongs Act 1958 (Vic), s 14J(3). Vines, n 81 at 497.

Uniform Law Commissioners, National Conference on Uniform State Laws, Uniform Mediation Act (2001) Summary (2002), http://www.nccusl.org/nccusl/uniformact_summaries/uniformacts-s-uma2001.asp viewed 26 March 2007. For ADR in federal administrative programmes, see American Bar Association Ad Hoc Committee on Federal ADR Condentiality, Guide to Condentiality under the Federal Administrative Dispute Resolution Act (2005), http://www.abanet.org/dispute/news/2006/ Guide-Final-Jul05.pdf viewed 26 March 2007.
95

Uniform Law Commissioners, National Conference on Uniform State Laws, Uniform Mediation Act with Prefatory Note and Comments (2002) pp 6, 8, 10-11, http://www.law.upenn.edu/bll/ulc/mediat/UMA2001.htm viewed 26 March 2007. Uniform Mediation Act (US), s 6.

96 97

Seat K, Mediation News: Vermont Enacts UMA with Labour Exemption (2006), http://www.mediate.com/adrnews/index.cfm viewed 26 March 2007; Uniform Law Commissioners, National Conference of Commissioners on Uniform State Laws, A Few Facts about the Uniform Mediation Act (2001) (2003), http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fsuma2001.asp viewed 26 March 2007.
98 99

National Conference of Commissioners on Uniform State Laws, n 95, p 10. Cohen, n 15 at 1032.

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In Australia, ADR is subject to numerous legislative acts, regulations and rules [which] are not consistent, coordinated or systematic across jurisdictions and programs.100 Condentiality provisions vary and are subject to exceptions.101 Generally, if an apology contains facts that are independently provable, the fact that mediation is condential will not necessarily prevent those facts being proved and relied upon in subsequent proceedings.102 Furthermore, a person may be compelled in certain circumstances to make disclosure of what was said in mediation.103 In the United States, invoking the phrase without prejudice may help make a statement safer, but it is not a guarantee.104 Also, on public policy grounds, the courts may disregard condentiality agreements.105 In Australia, an agreement to have without prejudice communications does not prevent a party from being compelled to give evidence in court.106 Without statutory or effective contractual privilege, a mediator can become a compellable witness.107 Litigation culture shifts the focus away from moral concerns to strategic manoeuvres and legal consequences, which are antithetical to apologies.108 As lawyers see their roles in adversarial terms (macho-lawyering),109 and seek to maximise benets for their clients by focusing on monetary or injunctive relief,110 they may hesitate to suggest an apology. Lawyers may neglect to discuss an apology because, if an apology occurred, their fees could end.111 The fear that an apology might be construed as an admission of fault,112 the fear of being seen to be disloyal by their clients, or as a softie,113 also deters lawyers.

Encouraging apologies
Cohen has argued for an evidentiary exclusion for all apologies.114 An exception would
free up those individuals who wish to apologise for legal wrongs but do not out of fear of liability, and perhaps would stimulate lawyers to encourage their clients to apologise in the hopes of settling a case or thwarting litigation.115

Some jurisdictions have statutorily prohibited expressions of sympathy from being used as proof of fault in injury cases.116
100 National Alternative Dispute Resolution Advisory Council (NADRAC), Report to the Commonwealth Attorney-General, A Framework for ADR Standards (2001) p 44, para 3.9. 101

For example Family Law Act 1975 (Cth), s 19N; Mediation Act 1997 (ACT), s 9; Civil Procedure Act 2005 (NSW), ss 29-30; Supreme Court Act 1935 (WA), ss 71-72. Carroll, n 61 at 51. Carroll, n 61 at 52. Cohen, n 15 at 1036. Cohen, n 15 at 1039. Carroll, n 61 at 52. Carroll, n 61 at 52. Levi, n 35 at 1188. Cohen, n 15 at 1044. Levi, n 35 at 1167. Cohen, n 15 at 1046. Levi, n 35 at 1188. Cohen, n 15 at 1043, 1046. Cohen, n 15 at 1062-1064. Latif, n 47 at 320.

102 103 104 105 106 107 108 109 110 111 112 113 114 115 116

Civil Liability Act 2002 (Tas); Civil Liability Act 2002 (WA), ss 5AF-5AH; Wrongs Act 1958 (Vic), ss 14J, 141; Northern Territory Personal Injuries (Liabilities and Damages) Act 2003 (NT), ss 12-13; Queensland Civil Liability Act 2003 (Qld), s 68-72; Civil Liability Act 1936 (SA), s 75; Evidence Code (California), s 1160 (Supp 2004); Civil Practice and Remedies Code (Texas), s 18.061 (Supp 2004-2005); Massachusetts General Laws, Ch 233, s 23D; Evidence Code (Florida), Title VII, s 90.4026 (Supp 2004).

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While a full apology will usually be the most powerful, merely expressing sympathy can often be a large step, and especially useful in cases where the extent of each partys fault is unclear,117 or when the injury is minor.118 Expressions of sympathy accompanied with an offer of fair compensation might make claimants feel that they had been apologised to.119
Lawyers protective of their clients interests might serve those interests by encouraging clients to apologise short of admitting liability.120

But because an apology is more than just an expression of regret in the moral domain, partial apologies may be ineffective.121 Taft believes that for an apology to be authentic, there must be an unequivocal expression of sorrow, and an admission of wrongdoing.122 Also, because a partial apology requires such precise wording in order for the statement to be protected, it might deter people from apologising.123 Robbennolts research suggests that, on the whole, a partial apology may not be very effective in improving settlement prospects because it fails to convey to the recipient that the offender has accepted responsibility, has regretted his or her behaviour, and that the wrongdoing would not be repeated in the future.124 Partial apologies may negatively impact perceptions where responsibility is relatively clear or where the injury is more severe.125 Some jurisdictions have statutorily prohibited full apologies from being used as proof of fault in injury cases.126 Vines has described the NSW and ACT legislation as a real strength because it allows a full apology without automatically creating an admission of liability.127 Such an approach would thus most likely succeed in reducing litigation.128 The British Columbia Ombudsman has recommended the NSW Act as a model for legislative debate, and has called for the introduction of legislation to protect public officials so that they are able to apologise without fear of litigation.129 British Columbia appears poised to be the rst Canadian province to pass legislation to allow people and organisations to apologise without fear of legal liability.130

117 118

Cohen, n 15 at 1048.

Robbennolt JK, Apologies and Legal Settlement: An Empirical Examination (2003) 102(3) Michigan LR 460 at 498-499, 507.
119 120 121 122 123 124 125 126 127 128 129 130

See Cohen, n 51 at 1460-1463, citing Toro Company as an example. Levi, n 35 at 1188. Vines, n 81 at 492. Taft, n 3 at 1154. Vines, n 81 at 504. Robbennolt, n 118 at 496, 508. Robbennolt, n 118 at 497-498, 507. Civil Liability Act 2002 (NSW), s 67-69; Civil Law (Wrongs) Act 2002 (ACT). Vines, n 81 at 499. Vines, n 81 at 505. British Columbia Office of the Ombudsman, n 49, p 16.

Theodore T, Act will Remove Legal Liability of Sorry, The Vancouver Sun (29 March 2006), http://www.canada.com/ vancouversun/news/westcoastnews/story.html?id=34e2e78b-bd7a-43db-b1f9-1f6fcbfc7952&k=97303 viewed 26 March 2007. See also British Columbia, Parliamentary Debates, Legislative Assembly, Bill M 202-2006: Apology Act, First Reading (2nd Session, 38th Parliament, 2006), http://www.leg.bc.ca/38th2nd/1st_read/m202-1.htm viewed 26 March 2007.

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In April 2003, Colorado became the rst American state to enact legislation excluding apologies as evidence of an admission of liability in medical malpractice cases.131 Some other states have since followed suit.132 Robbennolts research suggests that full apologies are viewed more favourably by the recipient as evidencing more regret, a greater likelihood of care in the future, and are thus more likely to lead to forgiveness and settlement.133 There is concern that protected apologies would result in insincere, manipulative apologies, and that it creates safe havens for wrongdoers.134 Taft has argued that partial apologies and protected apologies diminish the moral content of an apology.135 Robbennolt, however, has concluded that there is currently no evidence to indicate that statutorily protected apologies will be less effective in settling disputes, or less valued than unprotected apologies.136 The different evidentiary rules regarding admissibility of apologies as evidence of liability in her studies did not produce any signicant differences in settlement rates, or in the parties perceptions of the negotiation situation, the offender, or the apology.137 Thus, statutorily protected apologies appear to have a role in defusing conict.138 They may encourage people to apologise, or convey the idea that apologies are a desired response to an injury.139 Lawyers may encourage apologies by discussing them more often with their clients.140 They can advise clients how to apologise (including admitting fault) safely by using rules of evidence, mediation, condentiality agreements, or judicial order.141 As safe mechanisms arise only when disputes are well under way, offenders could express sympathy soon after the injury, and wait until a later (safer) stage to offer an apology admitting fault.142 Safe apologies may still be sincere if the injured party appreciates the context in which the apology is made,143 with the apologiser offering compensation with the apology in appropriate cases.144 The process of determining compensation after an apology is also likely to be far less adversarial.145 The risks and benets of apologising should be discussed with the client, but it is the client who must ultimately decide.146

131 132

Cohen JR, Toward Candour after Medical Error: The First Apology Law (2004) 5(1) Harvard Health Policy Review 21.

For example Arizona, Connecticut, Georgia, Montana and New Hampshire. For a complete list of laws enacted in the United States in 2005, see the National Conference of State Legislatures, Medical Malpractice Tort Reform State Medical Malpractice Tort Laws Section 2 (2005), http://www.ncsl.org/standcomm/sclaw/statelaws2.htm viewed 26 March 2007. For list of laws introduced in 2006, see the National Conference of State Legislatures, Medical Malpractice Tort Reform 2006: State Introduced Legislation (2006), http://www.ncsl.org/standcomm/sclaw/medmalreform06.htm viewed 26 March 2007.
133 134 135 136 137 138 139 140 141 142 143 144 145 146

Robbennolt, n 118 at 496, 506. Association of Trial Lawyers of America, Apology Legislation Gives Wrongdoers a Safe Haven (2005) 41(7) Trial 10. Taft, n 3 at 1150. Robbennolt, n 118 at 504. Robbennolt, n 118 at 502, 508-509. Robbennolt, n 118 at 502. Robbennolt, n 118 at 504. Cohen, n 15 at 1068. Cohen, n 15 at 1031-1042; Pavlick, n 10 at 865; Bolstad, n 16 at 576. Cohen, n 15 at 1040. Cohen, n 15 at 1067-1068. Cohen, n 15 at 1067-1068. Cohen, n 131 at 23. Pavlick, n 10 at 862.

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A discussion of apology and its use in alternative dispute resolution

Mediation has been described as the most appropriate,147 and natural forum for apologising.148 The private, non-adversarial nature of the proceedings,149 its interest-based approach,150 the face-to-face connection and interactive negotiation,151 the exploration of legal, interpersonal and moral issues,152 and the free expression of emotions153 are all said to make mediation an appropriate (though not perfect)154 venue for the exchange of apologies and forgiveness. Apologising serves an essential goal of mediation, which is the repair of frayed relationships.155 Where mediation condentiality statutes exist, it often provides a legally protected space for making a safe apology.156 Part of the mediators role is to create a place where it is safe to apologise.157
If the mediator feels that an effective apology would usefully realign the relationships between the parties, she may try to encourage apology.158

Mediators can facilitate happy-ending apologies by assisting parties to develop new channels of communication and to peel back layers of hurt.159 Mediators can help clients get past the defensiveness and fear of blame that preclude apology, and help with the wording of apologies.160 Nevertheless, while they should remain attentive to each partys tentative requests for an apology, mediators should not allow their personal judgments to override either partys needs or insist on an apology without party initiative.161

CONCLUSION
Sorry should not be the hardest word. Apology is but one word, but it is the one word that can make all the difference for those who need to hear it.162 It is often a key element, if not the key element, to resolving a dispute.163 Its power should not be underestimated. The recent legislation on apologies is a step in the right direction towards encouraging apologetic behaviour. Mediators and lawyers can help to create conditions favourable for an apology, and should continue to study the role of apology in mediation.164

147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164

Pavlick, n 10 at 862; Bolstad, n 16 at 569. Cohen, n 15 at 1038,1053. Pavlick, n 10 at 857. Pavlick, n 10 at 857. Levi, n 35 at 1169. Levi, n 35 at 1171. Pavlick, n 10 at 857. Pavlick, n 10 at 866; Cohen, n 15 at 1038 also identies some drawbacks. Goldberg S, Green E and Sander F, Saying Youre Sorry (1987) 3 Negotiation Journal 221. Cohen, n 15 at 1037-1038. Puls D, Apology: More Power Than We Think (2005), http://www.mediate.com/articles/pulsD1.cfm viewed 26 March 2007. Levi, n 35 at 1193. Levi, n 35 at 1198-1199. Schneider, n 36. Levi, n 35 at 1195. British Columbia Office of the Ombudsman, n 49, p 15. Cohen, n 15 at 1069. Levi, n 35 at 1209.

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