Articles

Alternative Dispute Resolution By Apology: Settlement By Saying I'm Sorry

Marshall H. Tanick
(email)
Mansfield, Tanick & Cohen, P.A.
1700 U. S. Bank Plaza South
Minneapolis, MN 55402
Tel: 612.339.4295
FAX: 612.339.3161

"Love means never having to say you're sorry."¹

Expressions of remorse are in vogue these days. President Bill Clinton apologizes to Welsh people for using the term "welsh" to criticize legislative proposals to reduce prior financial commitments; House Speaker Newt Gingrich states he's sorry for referring to New York City as a "cultural" wasteland; NBC's "Dateline" apologizes to General Motors, and ABC's "PrimeTime Live" does likewise to the tobacco industry for misleading reports; college football coaches like Florida State's Bobby Bowden express sorrow for running up the score against overmatched foes; actor Hugh Grant goes on tour to tell the public of his remorse for consorting with a prostitute.

The list of contrition could go on ad nauseam. These high-profile matters reflect the increasing expression of statements of remorse. Nevertheless, seeking apologies often causes major stumbling blocks in resolving legal disputes.

Extending an apology often stands in the way of resolving a bitter legal dispute. Although it sounds like a minor matter, saying "I'm sorry," or a variation of that phrase, can be a method of resolving legal disputes.

In many cases, expression of remorse becomes the focal point for a disagreement that may progress into litigation:

An ethnic student is the subject of an unflattering caricature in a Twin Cities newspaper in connection with an article lambasting his activism on controversial issues. He threatens to sue unless he receives an apology for the personal affront.
A pair of women working in a small business in outstate Minnesota are offended by the remarks of their boss, which they feel are sexists and demeaning. The boss, who only thought he was "joking," is confronted with a demand for an apology from the two subordinates.
A dissident member of a professional organization in St. Paul is suspended from the group and threatened with ejection for disruptions at meetings. The group agrees to restore her to good standing if she furnishes an apology to the membership.

The newspaper furnished a written apology to the student it characterized and also conducted a sensitivity training session for its staff. These steps averted a lawsuit, which the newspaper probably could have won, but it would have been costly and contentious.

The boss who made the offensive remarks was reticent when it came to giving an apology. His reluctance led to a lawsuit and, ultimately, large legal costs and a small settlement payment. The disgruntled club member brought suit and was restored to full membership rights in the organization when she agreed to extend an apology to the group. These cases, and others like them, reflect the variety of ways in which contrition can be important, not trite, in resolving legal disputes.

COMPULSORY CONTRITION

The growing recognition of the significance of apologies in resolving legal disputes has generated case law concerning contrition, because of First Amendment concerns, courts often loath to require parties to undertake acts of contrition. They view a compulsory apology as a violation of the freedom of expression - the right not to speak.²

But the enhanced acceptability of apologies has led many courts to impose and uphold compulsory contrition in a variety of contexts.

For example, courts can require remorse in imposing criminal penalties.³ They also may require an apology as an equitable remedy in civil litigation.⁴ Stating "I'm sorry" also has been judicially upheld as a method of settling legal disputes. Expressions of public apology have helped resolve a myriad of disputes, including a charge of contempt against a TV network for failing to abide by a judicial order, a lawsuit based on defamatory broadcast implying parents were partially responsible for their daughter's suicide, and a dispute involving the damaging "leak" of confidential government data.⁵

The vagaries of case law are not central to the use of apologies as a means of alternative dispute resolution (ADR). Judicially sanctioned apologies usually are not the way contrition comes about. Rather, it typically is the product of a consensus between the parties that an apology, individually or coupled with other consideration, can resolve a legal dispute.

With all of the emphasis on ADR these days, one of the most effective means of averting or solving legal disputes is often overlooked: giving an apology.

APOLOGY ANALYSIS

Furnishing an apology is often more difficult than it seems. In many cases, an apology is not an issue or, if it is, it is not dispositive of the dispute. In some cases, however, an apology may be all that stands in the way of dispute resolution. Yet, parties are often wary of giving an apology for a variety of reasons, some logical and some lunatic.

Parties may be reluctant to apologize prior to a final settlement of a case because of concerns that the apology may be used as an "admission" in litigation. This is a legitimate concern in some cases, but not necessarily insurmountable. The offer of an apology can be extended in confidential settlement negotiations.⁶ However, some statements made in settlement negotiations have been held admissible, if it is not disputed⁷ and admissions concerning factual matters.⁸ Therefore, the form of the apology should be carefully crafted to avoid admission of wrongdoing.

Parties to a legal dispute, especially one that is moving toward a lawsuit or already is in litigation, are driven by powerful emotions. Their visceral reactions usually affect their views and can impede any act of contrition on their part. Many disputes are grounded on principle, which also makes it difficult to extend an apology.

In some cases, a party may be willing to furnish an apology, but the other party is unwilling to accept it as a means of resolving the dispute. This often invites additional persuasion in order to make an apology acceptable.

Even if the parties can reach an accord on the concept of an apology, the manner in which the apology is given, including its wording and format, may pose a difficult barrier. Once an apology is provided, the recipient may wish to utilize the apology, or convey it to others, in a way inconsistent with the desires of the party extending the apology.

These hurdles, however, are not insurmountable. While not every case is susceptible to settlement by apology, creative and competent counsel can help resolve disputes by using an apology as a means of ADR.

Here are some considerations to take into account in effectively using contrition in dispute resolution.

Identify Issues: Most cases are not susceptible to resolution solely through an apology. But those that are need to be identified. (Early recognition of a case that is amenable to a resolution of apology can save the parties much anguish and expense.) Contrition can usually be more effective in the early stages of dispute, before feelings have intensified and attitudes hardened. The earlier in the process that apology can be extended, the more likely it is to be accepted as a means of settlement in order to fend off large legal expenses.

Disputes in which large amounts of money or other considerations are at issue usually do not lend themselves to ADR by apology. In those instances, the parties want to obtain something tangible, beyond a mere expression of regret by the other side. But, even in cases in which substantial sums are involved, providing an apology may be the missing piece that solves the settlement puzzle.

But, trying to wedge an apology into a situation in which it is not appropriate or desirable will simply cause additional hard feelings and waste time and resources. Therefore, early identification of disputes that are susceptible to resolution by apology and prompt action to achieve the contrition are essential to make an apology an effective form of ADR.

Demand Desires: Proper evaluation of the efficacy of an apology as a means of ADR necessitates inquiry regarding what the parties really want. Lawyers often are remiss in not ascertaining the true desires of the parties, including their own clients.

All parties to a dispute should be canvassed at an early stage to determine their desires. The possibility of an apology should be presented to both clients and opposing parties as early as possible in order to have them focus on that as a means of resolving a dispute.

While an apology may not be exclusive means of ADR, it can be an important element that lubricates settlement discussions. But contrition cannot fulfill that role if the desires of the parties are kept in the dark.

Timing Temperament: When an apology is suggested can be an important element in ADR by apology. Generally, it is prudent to raise the issue of apology at the earliest possible stage. If acceptable, this may head off protracted and costly litigation. If not acceptable, the parties will be aware that contrition is not a solution.

But, in some circumstances, raising an apology at an early stage may be counterproductive. Sometimes, especially in emotional cases, parties need an opportunity to vent. Rushing in to ask for, or offer, an apology too early may be summarily rejected, and the parties may be unwilling to reconsider an apology at a later, more propitious date if they previously have rejected the concept. Therefore, the timing of an apology, whether raised by the party offering it or seeking it, is a delicate matter that depends on the temperament of the parties and the tenor of the dispute.

Figuring Form: Participants in a legal dispute have a knee-jerk reaction to the prospect of an apology. The party to whom an apology might be given often is resistant to the proposition, frequently thinking that the other side will not be willing to extend an apology anyway. The party from whom an apology might be sought is equally likely to resist the idea, often unwilling to engage in what it deems to be an indignity.

Some of these barriers can be overcome by recognizing the wide variety of forms which an apology can take and figuring out a form that works. There are many alternative ways of saying "I'm sorry." Some of them may not be recognizable as an apology, yet still be effective.

"I was wrong, I am sorry." The most direct and effective apology; however, care must be taken with this and other forms of apology to avoid an "admission" prior to the settlement." I was wrong, I am sorry." The most direct and effective apology; however, care must be taken with this and other forms of apology to avoid an "admission" prior to the settlement.
"I won't do it again." An agreement not to repeat offending action is highly effective and need not always include an admission of wrongdoing. It may be that an individual learned for the first time that a particular act or comment was hurtful to another and agrees not to do it again to avoid hurting another.
"If I could turn back the clock, I would do things differently" can be an admission that other choices would have been made, had the consequences been anticipated.
"Difference in perception." One party may have done or said something, not intending the message which was perceived. An apology can explain what the offending party actually intended and offer an apology for any difficulties caused by the miscommunication.
"I am sorry you were injured or I am sorry this happened to you." This apology does not necessarily admit wrongdoing, but is an expression of caring or sympathy which is sometimes appreciated.
"Forward-looking statement." A statement acknowledging a future positive relationship may be enough to cement an agreement. "I look forward to doing business with you in the future" is one example.

Communication Conundrum: In addition to what is said in an apology, how it is communicated can be a conundrum. There are a variety of ways in which an apology can be extended.

The traditional, and most typical, format is for an apology to be made in writing. It is often important for the apology to be made in writing in order to preserve and memorialize it. In other instances, an oral apology, often made face to face, helps personalize the apology and make it more palatable.

The public dissemination of an apology may be requested, or required, as apart of an apology. For the newspaper, it was understandable that the apology for the ethnic slur would be published in the newspaper. In the case involving the membership dispute, it was logical to seek and obtain an apology made to all members at a membership meeting.

In other instances, apologies can be communicated in wider format. Publishing an apology in a company newsletter is sometimes appropriate, or apologies can be communicated through an internal memorandum.

In some solutions, however, a wide-scale apology is neither desirable nor appropriate. For example, an individual who was wrongfully described in a newspaper article as having been charged with child molestation due to confusion with a relative with a similar name, hardly wants a published apology that he was not the child molester that the newspaper made him out to be. He does, however, desire a recognition of wrongdoing, which might take place at a personal meeting with the responsible reporter and supervisory editorial personnel.

In other instances, an apology can be part of the record of a legal proceeding. It can be memorialized in settlement documentation and actually included in the settlement documentation itself. Apologies can be in the form of a letter from one party to another or in the form of a joint press release which includes quotations from one or both parties expressing regrets or making positive statements about each other. An indirect, but very useful, "apology" in an employment situation can take the form of a reference letter exposing the positive qualities of the former employee.

APOLOGY ARSENAL

Apologies are not customarily used or effective in resolving legal disputes

Lawyers, litigants, and prospective litigants all should be aware, however, of the utility of contrition. Apologies should be part of the arsenal of resources brought to bear in addressing and resolving legal disputes.

This article first appeared in The Hennepin Lawyer, July-August 1996.

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Endnotes

Erich Segal, Love Story 91, 151 (1970)
See, e.g., Wilkinson v. Bensalem Township, 822 F. Supp. 1154, 1156 (E.D. Pa. 1993) (court rejects requiring an apology prior to speaking at public meeting); Frederick v. Shaw & McClay, 1994 WL 57213 (E.D. Pa. 1994) ("damages," not written apologies, deemed proper remedy for defamation.
See, e.g., U.S. v. Clark, 918 F.2d 843, 848 (9th Cir. 1990) (apology is valid condition of probation in criminal case).
See, e.g., Desjardins v. Van Buren Community Hosp., 969 F.2d 1280, 1281-82 (1st Cir. 1992) (employer forced to apologize in wrongful discharge case).
U.S. v. Cable News Network, 752 F. Supp. 1037 (S.D. Fla. 1990).
Minn. R. Evid. 408.01
See In re: Commodore Hotel Fire and Explosion Cases, 324 N.W.2d 245, 247 (Minn. 1982).
See e.g., State v. O'Hagan, 474 N.W.2d 613, 619-20 (Minn. Ct. App. 1991); rev. denied (Sept. 25, 1991); McKay's Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 148 (Minn. Ct. App. 1992); rev. denied (Mar. 26, 1992).