Apology in Mediation

I recently mediated a divorce case and emotions were running high.  At one point, the husband said to his wife that he was truly sorry if he had not articulated his appreciation for his wife's contributions to the marriage.  I was able to see firsthand how a sincere apology changed the dynamic between the parties and allowed them to finish discussing all of the issues that they had identified as important to them in that particular session.

According to dictionary.com, an apology is a written or spoken expression of one's regret, remorse, or sorrow for having insulted, failed, injured, or wronged another. Rabbi Amy Schwartzman of Temple Rodef Shalom says that she has learned that apologies can be complex, that they often require many conversations, and that forgiveness cannot be expected immediately. And according to Beverly Engel, apology has "the power to repair harm, mend relationships, soothe wounds and heal broken hearts" (Psychology Today, The Power of Apology, June 9, 2016). 

​So does apology have a place in mediation? I think that apology can be an effective tool in mediation that helps to allow the parties to reach closure.  Here is an example of a case where apology was the turning point in mediation:

Scott Krueger arrived for his freshman year at the Massachusetts Institute of Technology (MIT) in the Fall of 1997.  Five weeks later he was dead of alcohol poisoning after fraternity initiation.  Scott's parents intended to sue MIT alleging a culture of alcohol abuse and a housing arrangement that steered new students to live in fraternities.  MIT's lawyers saw this case as one that could be won through litigation but the university chose to offer to mediate instead.

During negotiations, Scott's parents angrily asked MIT's President why he attended their son's funeral but did not seek them out personally to extend his condolences.  The President responded that he had consulted with people about whether he should approach the Kruegers and was advised that, in light of their anger at MIT, he should not do so.  That advice was wrong, he said, and he regretted following it.  He went on to apologize for the university's role in what he described as a terrible, terrible tragedy.  "We failed you," he said and then asked "What can we do to make it right?" This apology was the critical moment in the case, and the mediator channeled the discussion toward what the Kruegers wanted and what the university could do. No court could have compelled this personal, unconditional apology.

In the end, MIT paid the Kruegers $4.75 million to settle their claims and contributed an additional $1.25 million to a scholarship fund that the family would administer.  At the conclusion of the process, the President and Mrs. Krueger hugged each other.  The mediator's greatest contribution was to allow the emotion to be directed to him and then re-directed to the President and the university.  MIT felt that the agreement minimized the harm that litigation could have caused the university and that the settlement made sense. MIT leadership recognized that MIT policies regarding student use of alcohol could have been better.  University leadership also felt that a narrowly drawn legal response would not be in keeping with MIT's values. (Golann and Folberg, Mediation, The Roles of Advocate and Neutral, Third Edition, 2016..)

How do we ensure that apologies are sincere? Rabbi Schwartzman quotes from the book "On Apology" by Aaron Lazare in a sermon she delivered on Rosh Hashanah in 2013.  "The first step in apologizing is to recognize our offense and also to recognize its impact on the person hurt. We also have to show we truly regret what we did. We have to actually ask for forgiveness and be prepared to do whatever it takes to mend as much as we can. Finally, an apology is not really complete until, after resolving to refrain from the transgression in the future, we do indeed refrain from repeating the offense when the opportunity arises."

Compare the MIT President's apology with an apology made by Justin Timberlake after the Super Bowl halftime show when Janet Jackson experienced a wardrobe malfunction.  A week later, the following apology was made:  "I know it has been a rough week on everyone and, umm, what occurred was unintentional, completely regrettable, and I apologize if you guys were offended."

Golann and Folberg believe that mediation provides a setting in which disputants can apologize more easily than in direct negotiation -- perhaps because the mediation process is confidential and allows people to speak without concern that the apology will be used against them in a courtroom at a later date.  It is thought, though, that a partial apology will be heard as insincere and thus will lower the chance of settlement. Ultimately, Golann and Folberg conclude that how an apology is made is crucial to its effectiveness.

Mediator Carl D. Schneider quotes E. Kastor from The Repentance Consensus: A Simple Apology Just Doesn't Cut It and and says that  "An apology may be just a brief moment in mediation.  Yet it is often the margin of difference, however slight, that allows 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." (What It Means to Be Sorry:  the Power of Apology in Mediation, January, 2006.)