ADR Spotlight: Who's sorry now?

By Joe Basta

The season is upon us. Alas, not summer but the season of apologies. Like pollen in the air, apologies proliferate. Brought to the forefront by the #MeToo movement, apologies are everywhere and not just limited to controversies over sex harassment.  The problem is too many of the apologies we see are half-baked and insincere. 

Apology is now getting a bad name. Perhaps it’s time to set the record straight and take a second look at what—along with “splitting the difference”—is a most useful and time-honored tool for breaking impasse and resolving even the most intractable disputes.

The opportunity to use apology as a dispute resolution technique arose several times early in my litigation career both in personal injury and in commercial cases.  But my clients and I were too reticent and too fearful to avail ourselves of the opportunities.  More importantly, we lacked the context within which we might use an apology without admitting guilt in an admissible way under prevailing evidence rules.  

The advent of mediation court rules and apology statutes for medical malpractice like MCL 600.2155 now enable parties to apologize in most cases without fear.

As most litigators know, lawsuits often are not “just about the money.”  Emotion often plays the most important role in decision-making and in settlement. An apology and its acceptance can satisfy emotional and social needs worth far more to the recipient than what the offeror gives up. Apology—often regarded as a late-stage, impasse breaking technique—may be most useful early in litigation when it is more likely to save time, money, and psychic energy if done well.

Although apologies often begin with “I’m sorry,” the best and most effective of them contain these elements:

• Expressing regret;
• Manifesting sympathy;
• Admitting responsibility;
• Promising not to do it again; and
• Offering restitution.

I ask the students in my negotiation classes to test these elements against some of the most infamous apologies to learn firsthand what works and what does not.  Simply surf You Tube for “apology” and these names: Elliot Spitzer, Anthony Weiner, Tiger Woods, David Letterman, and Michael Richards to judge for yourself.

Folberg and Golann, in their text Lawyer Negotiation, report research on the effects of apologies on settlement negotiations conducted by Jennifer Robbennolt and published in the Michigan Law Review.   The research parallels the anecdotal reactions of my students to apologies they review on the internet. The nature of the apology, that is, whether it is full or partial, influenced the willingness of recipients to accept a settlement offer. 

Full apologies got better results than partial apologies or no apologies at all. An offender offering a full apology was seen as more regretful, moral, and likely to be careful in the future than someone offering only a partial apology or none at all. And a settlement offer accompanied by a full apology was more likely to be received as adequate compensation than one combined with either a partial or no apology. The degree of fault and severity of injury did not appreciably change these results. Full apology favorably improved the perceptions of participants over partial or no apology.  Partial apologies were no better or worse than offering no apology at all.

Clearly, apologies can have beneficial effects on settlement for parties willing to make them, if done correctly with help from one skilled in negotiation and mediation. 

Fortunately, those of us who litigate in Michigan do not have to agonize over the effects of a full, responsibility-accepting apology in favor of a partial apology that may limit liability but may not get the desired settlement result.  Offering a full apology without fear of retribution is possible in most cases if the parties engage in mediation subject to the confidentiality provisions of MCR 2.412 (although one must be familiar with the exceptions in this rule too, particularly in cases alleging malpractice). So ignore the current bad media buzz that abounds regarding apology. If emotion runs high in your case, consider apology as a potential solution.  You won’t be sorry if you do.
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Joe Basta heads Basta Resolutions, PLLC, an Ann Arbor-based firm specializing in mediation and arbitration of commercial and family disputes. He is a former chair of the Alternative Dispute Resolution Section of the State Bar of Michigan. He was a trial lawyer for over 34 years at Dykema, litigating complex commercial matters. He teaches negotiation at the Michigan State University of College of Law and is a member of Professional Resolution Experts of  Michigan Inc. (https://premiadr.com).