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Mediating Parties: Get the Most Out of Your Apology!

June 11, 2013

Didn’t your mom repeatedly tell you?  “Actions speak louder than words!”

This is particularly true with any apology.  It is never enough to simply “say” you are sorry; it is imperative that your immediate following actions are also consistent with your earlier words.

And, it is also true in MEDIATION!

It is as predictable as rain (and, by the way, a really great technique) for almost every defendant’s lawyer to “apologize” to any plaintiff in some fashion at some point during their opening statement.  Even, if their client really believes they have done absolutely nothing wrong and certainly should never have been sued.

(Less common, but just as effective in some circumstances,  is a similar plaintiff’s lawyer apology for the “litigation that should never have become necessary”, as an effective tool for some claimants/plaintiffs.  Particularly in the business world.)

Done appropriately, such an apology is usually “money in the bank” regardless of how really “heart-felt” it may really be.  And, it is a mediation tool every attorney simply must master.

But, unless the remainder of  the mediation technique of the defendant  (or plaintiff) follows and builds upon the hoped-for good will obtained by the “apology tactic”, it may well have been a total waste of  your time.

Most plaintiffs (and most defendants) feel very, very “wronged” by something.  Or, frankly, they would never voluntarily submit themselves to the rigors of litigation.  Despite what is believed by the Defense Industry, litigation is hard on the lay-claimant-plaintiff.  Given a choice, none would choose that route.  And, by the way, most believe they did not choose to be the “victim” they must already feel they are in order to goad them into considering entering the stress and strain of America’s judicial system.

Obviously, defendants have feelings also, and of course, most feel very wronged by the pending litigation!  But, it is the defendants, usually, that are writing a check to resolve the litigation and thus, the “money” apology is usually used by the defendant’s attorney to reduce the necessary amount of any check that must be paid for resolution.

(For the plaintiffs, it is usually intended to make writing the check a bit more palatable to the defendant.)

Thus, defendants (or plaintiffs) beginning mediation by “apologizing”, in some form or fashion, is quite a standard practice.  And, highly effective, if done properly.

(i. e., Opening with your blazing, “We are going to win and make you sorry your were born” speech and then closing with your lame, “but we are sorry for your (condition)”, will be a waste of your “apology” breath.)

Many attorneys will choose to try to combine an apology in every opening.  Some may succeed, but I believe for most attorneys it is simply counter-productive to try to emphasize your defenses, if you also want to gain any mediation edge from an “apology”.

Likely, it is preferable to pre-choose your route.  Either give the apology,  and move on to resolution efforts or choose to skip the apology and then bang away with your usual “we are going to win” theme!

But,  if you use this apology theme, to capitalize on any apology tactic is to carry that same spoken theme of apology through the remainder of your opening, and more importantly, through your consistent mediation actions of apology throughout the remainder of your mediation.

First, the remainder of your opening statement must also logically follow your initial theme of “I am sorry (and guilty of some wrong)”.

For example, why open with a “We are sorry” and then go on to argue that your clients did nothing wrong.  (I know, you can be sorry for someone, without admitting guilt.  And, that is how you obtain permission to use the tactic.  But, your opposition will not see it that way!)  Once the opposition, not necessarily their attorney, hears “we didn’t do anything wrong (or, worse, it is all your fault),  your opposition will totally forget your entire allegedly heart-felt apology!

One simple method to avoid this misstep is to waive totally any further opening.  Or, at least, heavily shorten your opening statement to only a few selected non-liability issues, such as suggesting your use of mediation is only to “clear up” a few matters to allow early resolution.

Another even simpler method is let your mediator carry your water!  He/she should be able to carry your position as well as you, but without incurring rancor during his/her private caucuses.

Next, after opening, in order to build upon the good will of such an opening, your  theme of your then following mediation actions  must also continue as your “healing” effort, not your “bargaining” stance.

Begin, for example, by changing your usual tactic of negotiation.  (Yes, such tactics are predictable to many opposing participants.)   i.e, Making any opening offer (or initial response) that is insulting*, after first apologizing, is counter-productive to your effort!

(*I know some negotiators feel they must open all negotiations with toughness, i.e. a low-ball offer,  no matter the context.   I contend,  however, if you are truly seeking resolution, this “usual” approach is a total mistake.  If you feel you will gain from your apology, why not also move, immediately, to an offer that at least allows the Plaintiff  (or Defendant) something to actually have to consider?)

Unless your final offer/demand you intend to make  is the only one to reach such a point, what is your gain from insulting the same person you just wooed?   Using “mediator math” allows both sides to evaluate the impact upon the party offering or accepting any proposal.

Another technique:  Don’t send confrontational “messages” through the mediator.  Keep the high road and if anything, allow as much space to your opponent as may be necessary for them to begin to “like” you (or your mediation efforts.)

Next, avoid dragging out negotiation . Most mediations fail from frustration and hard feelings of the parties that causes failure due to “fear of failure”.  See, “Is ‘Fear of Failure’ Ruining Your Negotiations”  December 10, 2011.

In short, after your apology in opening, then dragging out what could/should  easily be a swift negotiation, makes your opposition believe you didn’t really mean your apology.   Returning to “business as usual” immediately defeats your apology effort.

Be prepared to accelerate your negotiation to accommodate the acceleration you will likely see from your opposition responding to your apology!  (If your opposition does not respond, frankly, they did not believe your apology!)

At least get on to your end point of your negotiation, as rapidly as possible.

(What are you afraid of?  Are you really going to pay more (or accept less) because you made your final offer of resolution too quickly?  Generally, you will know what you can pay or accept and only a few rounds of truly prepared negotiation is necessary.)

Remain pleasant and calm through the entire process, including with your mediator.  Whether you know it or not, your demeanor and attitude is often, even though inadvertent, carried back into private caucus of your oppositi0n by your mediator.  If you remain focused, flexible and pleasant, it allows your mediator to magnify that demeanor!

If you then achieve resolution by this theme, please then avoid demanding more than what is fair in exchange for the resolution.

If your apology strategy is starting to work (or has worked), why would you clutter it up by demanding details of your mediation settlement agreement that are too onerous?  What are the odds that your 30 page release is really any more necessary than one of 5 pages?  How many cases collapse over the wording of releases or timing of payments?  What difference does it make if the defendant needs a few more days to send their check than usual.  If you hadn’t settled, your client would not be seeing money for years!

Isn’t resolution, the end of the conflict, the real goal?  It certainly is for your client!

Are you getting the picture?

If your strategy for obtaining resolution for your client is to use the very valuable “apology” technique, just make sure you then complete your strategy by the remaining mediation actions you take AFTER your verbal apology in opening.

It  really will work, if you will just plan for it!

Dan, from Vero Beach, Florida.

3 Comments leave one →
  1. July 19, 2013 2:10 pm

    Dan: Great discussion about the importance and value of a well-timed apology. If a party is reluctant to make an apology, he or she might fear that the opponent will exploit it to their advantage after the mediation. Parties may be more willing to consider an apology if they remember that it is a confidential mediation communication. The Mediator Ethics Advisory Committee issued an opinion on apologies and how they may be kept confidential. See:
    Keep up the great work.


  1. Mediation: One Sample for a Perfect Defendant’s Counsel Opening Statement? | Honeywell Mediation
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