Lesson II – The Benefit of an Apology

One of the difficult things in mediation is the party that cannot look past a perceived personal slight or insult and look objectively at their case. They sometimes feel that they have been “singled out” or treated impersonally by a seemingly heartless corporation such as an insurer, or the employer of our Mediation Road Warrior, Mr. Smith. As these type of claimants frequently file the type of personal injury claim that Mr. Smith handles, I asked him how he deals with this issue.

Mr. Smith believes strongly that you have to get the parties looking at the matter from an objective, risk analysis perspective, and if the claimant is preoccupied with assessing blame or harboring ill will toward the defendant, they will not think objectively about the issue at hand – mediation and settlement of their claim. Mr. Smith believes that an apology or a statement of sympathy from the corporate representative will often defuse the tension in the room and allow the parties to focus on the issues at hand.

Many lawyers overlook this fact and view an apology or a statement of sympathy as a sign of weakness. Nothing could be further from the truth. Mr. Smith does not suggest an admission of liability or fault, but a statement along the lines of, “We understand that this has been difficult for you, Mr. Plaintiff. I hope you understand that nobody at XYZ Corporation intended for you to get injured, and we are sorry this happened to you. We are here in good faith to try to negotiate a settlement to which we can both agree.” Often, the claimant simply wants an acknowledgment of the pain and suffering he has endured at the hands of the offending party. A statement like the one Mr. Smith suggests could go a long way to making the claimant feel as if his needs and concerns are being heard, if not fully recognized, and that he is being viewed as a person, and not a file.

In fact, in a recent case in which I participated, the plaintiff’s demands included a formal apology from his employer for alleged wrongful treatment. There was some indication that this was his primary concern and that everything else was secondary. He felt isolated and unfairly treated and simply wanted someone to say, “I’m sorry. I understand your concerns.” Never underestimate the power those words may have in the context of a mediation.