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.

Keys to a Successful Mediation: Patience, Perseverance, and Jill’s Mother?

Some years ago, I represented a family-owned trucking company, whose dump truck driver tried to pass a car on a narrow two-lane road in rural South Carolina.  The driver was speeding and not paying attention.  He ran the car off the road, injuring the car’s driver, “Jane,” and her passenger, “Jill.” We’re all about the pseudonyms here at Abnormal Use. Both Jane and Jill hired a local lawyer and then sued the trucking company.

Jane was more seriously injured, and we ended up settling her case at mediation.  As I recall, we paid her a significant sum of money.  Despite that fact, when the mediator came to our conference room, he said he had “good news and bad news.”  The good news was that the case was settled.  The bad news?  He said we needed to leave the office through the back door!  This is the first, and last, time in my legal career that has happened.

To this day, I do not know how or why we may have offended Jane.  Perhaps she doubted the sincerity of our apology on behalf of the trucking company.  Perhaps she was tired and irritated after a long day of intense negotiations.  Resolution often comes only when both parties have been pushed beyond their comfort level.  Patience and perseverance are often the keys to a successful mediation.

Then, there was Jill.  She was not hurt as seriously as Jane, had fewer medical bills, and was able to return to work.  Yet, as some Plaintiffs somehow do, she testified about a number of physical limitations which were inconsistent with her medical condition.  She did have a diagnosis of meralgia paresthetica, an unusual neurological condition with which I was previously unfamiliar.

We also mediated Jill’s case.  We were making little progress in settlement negotiations when the mediator asked me, “Mauney, why are you being so cheap?  This lady is hurt!”  I told him that we had recently conducted surveillance, which had not yet been disclosed to Jill or her lawyer.  The surveillance – as it sometimes does – showed Jill doing some things which were inconsistent with her deposition testimony, including walking around a flea market for four hours without sitting down or resting and hopping up her apartment steps two at a time without holding onto the railing.  The mediator suggested we hold off on disclosing this information until later in the mediation.  Yet another key to a successful mediation is being able to trust the mediator with this type of information.  In this instance, I trusted the mediator’s judgment on when we should disclose the surveillance during mediation.

When we appeared to reach an impasse, the mediator asked for the surveillance tape to show Jill and her lawyer.  Shortly thereafter, we began to make more progress, as Jill and her lawyer became more reasonable.  My client and I were pleased that we were making real progress toward settlement.

Then, that progress came to a quick halt.  We hit the wall.  The mediator told us that we were not going to be able to settle the case.  Why?  Jill, a grown woman, in her mid 30’s, called her mother from the mediation and told her about the surveillance.  The mother was not amused.  In fact, she accused the big, bad trucking company and its evil insurance company of spying on her daughter.  Jill’s mother was furious; she told her daughter that she had better not come home that day if she accepted the offer that was on the table at that time.

It is always interesting to learn who you need to persuade to get a case resolved.  We had no idea that Jill’s mother was someone of such great influence.

And now for the rest of the story.  Fast forward a few months later to the jury trial of Jill v. Big Bad Trucking Company.  (Yes, that was the actual case caption!) We expected the jury to return a verdict for Jill.  This suspicion was influenced, in part, by the fact that our driver smelled of alcohol when he showed up for his deposition.  He was nowhere near the courtroom when we tried the case.  We offered testimony from a medical expert to refute Jill’s injury claims and also called the private investigator as a witness to show the surveillance tape. Just as expected, the jury returned a verdict for Jill.  But Jill and her mother must have been disappointed, as the verdict was a full 25 percent less than we had offered at mediation.  I always suspected that Jill’s lawyer knew we were offering a settlement that was fair and reasonable.  He probably also thought that Jill’s mother should have stayed out of it!

[Editor’s Note: Click here for Stuart Mauney’s previous story of how he got burned at mediation by his own Facebook post.]

Burned at Mediation by My Own Facebook Post!

The day after we run a post about one being impeached by one’s own social media, I, as a guest author here,  had to step in and offer up my own thoughts on that very subject. I use Twitter and LinkedIn for business purposes. If you ever want to know how I use them, I would be pleased to share that with you.  I can share some success stories, and perhaps some helpful hints, if you are so inclined. I do believe some form of social media should be in every lawyer’s marketing toolbox. But it is just that: one tool among many.

I am also on Facebook. I have some 400+ “friends.” I rarely turn down a friend request. I enjoy it. I have fun posting things and engaging in online conversations about the issues of the day. I typically do not post work related material – I only do so when the firm or one of our lawyers receives an award or honor.

But there are dangers to this type of interaction, and I was burned recently by a Facebook “friend.”

I recently mediated a case with a familiar Plaintiff’s attorney. The case had been around for a year or so. A month before the mediation, the Plaintiff’s lawyer sent me a request to be his friend on Facebook. As I  am often inclined to do ,  I accepted it. I have many lawyer Facebook friends – even some plaintiff lawyers.   I learned that the Plaintiff’s lawyer in my case had posted several items about our case – not naming the lawyers or clients – but just random things. The morning of the mediation, he posted that he was mediating a case in which the “powerful corporate defendant” had “mocked and disrespected” his “disabled”  client.


During the mediation, the Plaintiff’s lawyer opened by saying that he did not think we were taking his client’s case “seriously.” In apparent support for that position, he actually projected onto the screen one of my very recent Facebook posts about my plans to celebrate my fiftieth birthday. (Yes, I recently turned 50.) The Plaintiff’s lawyer said, “Maybe he was ready for this mediation last Wednesday before he started celebrating his weekend birthday, but . . . .” His sentence trailed off as if to suggest his doubt. He also commented that I had not been to any of the depositions in the case, as if sending my  experienced senior associate to the depositions was in poor from.   The associate was handling it under my close supervision.  (By the way, we had sent the mediator a statement ahead of time and had prepared a booklet of material to share with the other side and the mediator to be used in the mediation.). The mediation ended unsuccessfully.

So there you have it – my personal Facebook post used against me in my own mediation. I have now defriended this Plaintiff’s lawyer.

Perhaps I will defriend other lawyers in the future – I don’t yet know. But it’s now a dilemma. Some of you will take great pleasure in pointing out how this is why one shouldn’t have a Facebook account. I don’t see it that way, of course, but it is certainly a reminder of the perils of social media.