Posted on: Feb 25, 2020

When it comes to mediation ‘sorry’ really is the hardest word. But why? And how can we change that?

After years of mediating, I feel confident saying that it is easier to get money than an apology. And it’s something I’ve spent quite a bit of time pondering.

It is a point of interest to me because I know the sizeable impact an apology can have in a mediation. The right apology can change the face of negotiations and the settlement price tag can plummet as a result. But, giving an apology is often resisted and sometimes the request alone is received like a slap to the face.

 

Find the source of hurt

One of the first questions I ask parties when mediating is usually a variation of “What’s important for you about today?” The answer varies, often depending on whether I am speaking with an individual or representatives of an entity.

Individuals tend to focus on the ‘righting’ of what they see as a moral wrong perpetrated on them. Their answers are along the lines of “they need to know it’s not ok to treat people the way they have” or “I want them to admit they were wrong”.

As the conversation develops, they eventually get to where they want the other party to make amends, so they can move forward, in whatever that form might take. I don’t usually delve much deeper than that in the beginning of a mediation, because I don’t want them to mentally jump ahead to focusing on what might be included in a settlement agreement. But that small snippet of information up front helps me understand their current mindset, providing insight into how best to explore the hurt – and to eventually meet the interests of the parties when we do come to consider real options for resolution.

 

Individual vs representative perspectives

When we get to the phase in a mediation where we consider options for resolution, lists of wants are put on the table and frequently there is a negotiation between parties.

When an individual is not represented, one of the first things they tell me they want is an apology. When an individual is represented, it is often not listed by the representative in the top five things, but when I ask if there is anything else the person needs included, they will frequently add “an apology”.

 

The relationship between apologies and money

Money that is requested and/or offered in mediation usually speaks to the need to have financial security, but it is also the stepchild of punishment or acknowledgement for which the parties feel they have no other tools available.

Apologies speak to a person’s need to have their identity or pride restored. Sometimes, knowing how difficult it will be for the other party to apologise, they are also seen as a punishment.

An apology can be perceived as a vehicle for blame i.e. ‘if I apologise, I accept responsibility for this situation and you have been vindicated’. It’s not unusual for representatives to advise their clients not to seek an apology because then the other party might think it has value and make a lower financial offer. And, they remind their client, “you already know they won’t actually mean it”. 

This speaks to me about how the representative measures success – that it will ultimately be measured by the value of money changing hands. I always feel a bit disappointed that this type of advice shuts off the very important aspect of human need that will probably sit with the person far longer than the money will sit in their bank account.

 

When apologies go wrong

Just as a genuine apology can reduce the financial quantum sought, an apology that is perceived as disingenuous can make a person feel as if salt is being rubbed into their wounds, increasing the financial amount sought and making resolution harder to achieve.

Likewise, an apology that is worded in a way that suggests an individual has mis-felt or mis-perceived a situation can also be detrimental. For example, “We apologise that you felt the decision was not right” is often heard as “We’re sorry that you’re an idiot”.

 

When to say sorry

When I was a young mediator all those years ago, I soon realised that the minute an apology is asked for, it’s too late to give one. So I started to work with parties to consider and, where appropriate, preemptively provide an apology before it was requested, and before the parties found themselves knee-deep in negotiation. 

I don’t subscribe to any pure model of mediation, as I don’t consider that any resolution process is so sacred it shouldn’t be messed with. A mediator can use any ‘tool’ available to them, as long as it is used through the lens of meeting the parties’ needs without causing harm.

Apologies are no exception. When executed well, an apology in mediation is a powerful mechanism for resolution. The key to utilising apologies effectively are:

 

Top 9 tips for utilising an apology in mediations

  • Remember you are in a ‘without prejudice’ forum (if you are), so blame cannot be transferred but it can be alleviated
  • It is the receiver of the apology who will determine if it is genuine
  • It should be carefully worded but delivered face to face in an unscripted way
  • It should never be perceived/conveyed as the mediator’s idea
  • It should be provided in a way that separates it from the legal merits or offer of settlement
  • It should be delivered by someone who has had a relationship with the person receiving it, not a representative
  • It should speak to the value and/or identity of the person receiving it
  • There must be no ‘out’ weaved into the wording
  • The mediator should make space in the process for it to be delivered well and for it to rest with the party receiving it before moving forward with the process

If you can get these ingredients right, then you are likely to increase the goodwill between the parties and reaching resolution may be more manageable.

 

Although, I come at this from the perspective of a mediator, I encourage representatives to spend time considering how they can utilise slumber giants, like apologies, into their own practice when assisting a client through dispute resolution.

 

Written by Anna Jones, Chief Executive and Director.



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This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.