Keys To A Successful Mediation: The Power of an Apology

Imagine this situation: customer and customer service representative find themselves in an argument over a trivial matter.  Words are exchanged.  But it doesn’t stop there. The dispute escalates into a verbal altercation with racially-charged epithets hurled back and forth.  (For the record: The customer was Caucasian, the customer service representative was African American).

The customer storms out of the place. The customer service representative follows her to the parking lot, yelling and screaming.  The customer, not to be outdone, continues the verbal assault from her car.  Finally, the customer decides to leave, places her car into reverse, and hits the gas.  As she raced backwards, she clips the customer service representative, causing her injury.

The customer service representative lawyered up and sued the customer.  That’s right.  You guessed it.  I represented the customer.

We mediated the case, in which the Plaintiff claimed over $20,000 in medical bills and a permanent injuries.  I met with my client before the mediation.  I asked her if she was comfortable offering an apology during the opening statements of the mediation session.  She quickly replied she was indeed sorry the whole thing had happened, and that the Plaintiff had gotten hurt.  I reminded her that hurtful words were exchanged, including racially insensitive remarks by both parties.  [Note: The remarks were so offensive that I am not going to publish them in this post.]  She seemed genuinely interested in getting the matter settled, and if an apology would help do so, she was all for it.

After the mediator explained the process, and the plaintiff’s attorney completed his opening remarks, I presented our case.  This was an accident, the customer was sorry this happened, and we hoped we could get the matter resolved, or words to that effect.  I then turned to my client, and asked her if she had anything to add.  To this day, I do not recall exactly what she said, but it was NOT an apology!  There was no acknowledgment of the injury.  She did not take responsibility.  She did not express any regret or remorse. Whatever she said, it offended both the Plaintiff, and the Plaintiff’s husband, who was with her at the mediation.  The husband stormed out of the room.  The Plaintiff’s body language and icy glare told me that we were going to start this mediation further apart than we had when we first arrived.

While we eventually settled, we spent a significant amount of time mending fences as a result of the insincere “apology.”  While an apology in mediation can allow closure, and if sincere, start the process of restoring trust, many people need help in crafting an apology.  As mediator Carl Schneider has written, “parties often need preparation before they are ready to offer an apology.”  The parties may need help with the words.  The mediator can help put “the apology in words and parties simply indicate their assent.”  In retrospect, I did a poor job of preparing my client for her apology.

In Schneider’s article, “What It Means to Be Sorry: The Power of Apology in Mediation,” he defines “apology” and what makes an apology work.  He then describes the use of apologies in mediation.  Schneider concludes:

An apology may be just a brief moment in mediation.  Yet it is often the margin of difference, however slight, that allow parties to settle.  At heart, many mediations are dealing with damaged relationships.  When offered with integrity and timing, an apology can indeed be a critically important moment in mediation.  Trust has been broken.  An apology, when acknowledged, can restore trust.  The past is not erased, but the present is changed.

Clearly, there are instances where an apology has been a critical element in resolving disputes, including lawsuits.  But that can only occur when the person apologizing is sincere, acknowledges the hurt, takes responsibility and expresses regret.