An apology is not a magic trick for settling a claim, but it can be remarkably effective in addressing a claimant’s need to be heard and acknowledged.
I’ve spoken in a few of my past posts about the inherent need of people to be heard and the impact it can have on their decision making. If someone doesn’t feel acknowledged or heard during a mediation, they can feel undervalued, ignored, misunderstood and suffer a loss of self esteem. This all negatively impacts their ability to make rational decisions and will make it difficult to reach a resolution.
For many claimants, an acknowledgement or apology is one of the main things they really want out of a mediation. It can bring them closure following a traumatic incident and drawn-out proceedings, and can help them to be more open to negotiating a resolution that will be acceptable to both sides. An apology essentially involves a moral re-balancing of power between the parties. I’ve seen missed settlement opportunities too many times because a party is too stubborn to acknowledge the pain and suffering experienced by a claimant and to offer an apology.
So what makes a good apology?
- Most importantly, it must be sincere and genuine. A claimant who feels wronged, hurt, angry or bitter will see straight through meaningless words. An insincere apology can actually make the matter worse and can exacerbate a dispute causing a party to dig their heels in and thwart any meaningful negotiations.
- It should address the needs of the claimant. Do they need recognition of the pain and suffering sustained? Do they need an acknowledgment that they have been wronged?
- Show some empathy. An apology doesn’t need to be an admission of fault. It can simply be an acknowledgment that they understand what the claimant has been through and are sorry for the pain and suffering that has been experienced.
- An apology must be offered without defence. Your client may need your help to get past their defensiveness and fear of blame when formulating and choosing the words for their acknowledgement or apology. A simple tip is to avoid the use of the word “but” – “I am truly sorry for the pain you have suffered, but…..”
- Acknowledging that nothing they can tangibly offer will make up for the damage caused. Sure, a financial settlement will be welcomed, but it won’t take away the hurt, pain or suffering the claimant has experienced. Often it is cathartic and healing for this to be acknowledged.
- The apology must be made unreservedly. In other words, don’t make the apology dependent upon the claimant also apologising for their alleged role in the dispute.
- The apology or acknowledgment must be made without trying to justify or explain the conduct that has led to the claim.
- Sometimes a claimant will also want to hear that there has been a change in the respondent’s behaviour. For example, they want to be told that a respondent has put measures in place to ensure that a similar incident will not happen again, or that they resolve not to knowingly or willingly repeat the action or behaviour that has caused or contributed to the claim.
If you’re acting for a claimant, it is useful to discuss with your client whether they would like to receive an apology and in what form. Do they want a written or verbal apology? Should it address certain issues? Does it need to be from a specific person? It is obviously very important to convey this information to your opponent well before the mediation.
If you’re acting for a respondent, discuss whether they are prepared to make an apology or an acknowledgment and if so, what they are prepared to say. As mentioned above, you may need to help them to prepare their apology or acknowledgment so that the right words are chosen and the appropriate tone is conveyed.
In my experience, an apology can be a powerful tool to help resolve a matter at mediation. Just remember though, that occasionally, but not often, an acknowledgment or apology can have the potential to make the claimant feel validated and ignite their desire to pursue the claim further. Unfortunately, a claimant’s reaction to an apology cannot be guaranteed, it can be unpredictable and unpreventable, but more often than not, an apology has great potential to release resentment, bitterness, anger, and hurt and promote trust and open dialogue.
Finally, your mediator can often assist with the preparation of the apology or acknowledgment. Prior to the mediation, they can consider the proposed apology and provide suggestions on any changes that may be required to adequately address the needs of the claimant.
If you would like to discuss the skills and approach that I bring to a mediation, please contact me on 0412 048 456 or by email on jsomerville@r3resolutions.com.au