ADR Articles
WHAT IT MEANS TO BE
SORRY: THE POWER OF APOLOGY IN MEDIATION – January 2006
(First published in the Mediation
Quarterly, Vol. 17, Number 3 (Spring 2000)
By Carl Schneider,
Mediator, trainer,
former co-chair MCDR Certification Committee
The importance of apology
as the acknowledgement of injury is familiar to some forms of mediation, including
victim-offender mediation, but has been much less understood in divorce mediation.
The act of apology represents one of the core reparative opportunities in damaged
relations. But it's not easy. This article will describe the opportunity that
apology presents, the difficulty we have in seizing that opportunity, and the
role that third parties can have in inviting apology. It will identify: 1) what
is involved in a genuine apology, identifying the three essential components
of apology; 2) the place of apologies in mediation including the recognition
of apology as an acknowledgement of injury and the identification of how to
assist clients in offering an apology; and 3) the relation of apology to the
adversarial system.
Introduction
Apologies differ. Compare the following:
Rev. John Plummer was a pilot in Vietnam who called for an air strike on the
village of Trang Bang. Twice, before acting, he was assured there were no civilians
in the area. Later, he saw the Pulitzer prize-winning photo of nine-year-old
Phan Thi Kim Phuc running from Trang Bang naked and horribly burned by napalm,
and was tortured by "the realization that it was I who was responsible
for her injuries."
Years of torment ensued as he silently endured his guilt, finding no way to
express his remorse. Then he saw a story that the girl was living in Toronto
and would attend a Veterans Day observance at the Vietnam Veterans Memorial
in Washington. He felt compelled to see her. Upon hearing what had happened
to her family, he broke down saying over and over again: "I'm sorry....I'm
so sorry.... I'm sorry" (Purdue, 1997 p. 2).
President Richard Nixon in his resignation speech said, "I regret deeply
any injuries that may have been done in the course of events that have led to
this decision. I would say only that if some of my judgments were wrong, and
some were wrong, they were made in what I believed at the time to be in the
best interest of the nation."1
Do each of the above examples represent an apology? Why? Why not? Is one more
effective than the other? How can we tell? Just what exactly is an apology?
I. WHAT IS AN APOLOGY?
Originally, the Oxford English Dictionary (OED) tells us "apology"
meant a defense, a justification, an excuse. Its modern usage has shifted to
mean "to acknowledge and express regret for a fault without defense."
This modern definition captures the core elements of apology: a) acknowledgment,
b) affect, and c) vulnerability.
What are the Elements of Apology?
a). Acknowledgment:
Jeffrie Murphy (Murphy and Hampton, 1988, p. 28) speaks of the role of ritual
in apology. Often, when an apology is called for someone has attempted to degrade
or insult the other; to bring them low. "As a result, we in a real sense
lose face when done a moral injury...But our moral relations provide for a ritual
whereby the wrongdoer can symbolically bring himself low - in other words, the
humbling ritual of apology, the language of which is often that of begging
for forgiveness."
There is a "ritual" of apology. As the OED says, there must be an
acknowledgment - a recognition - of an injury that has damaged the bonds
between the offending and offended parties. The offense has to qualify as a
genuine injury - one that has involved some transgression of a moral or relational
norm that has both damaged the offender's social bonds and called into question
his/her membership in some community. Tavuchis (1991, p. 13) calls this injury
"an act that cannot be undone, but cannot go unnoticed."
In turn the offending party must personally be accountable for it. This can't
be a Marv Alpert "I'm sorry if she felt she was harmed" passing stab.
It is not being sorry that she is the sort of person who feels that way. Rather,
it is acknowledging my role as the offending party in inflicting injury.
I have no excuse for what I did, yet it was indeed my action.
Contrast this with Nixon's classic non-apology. In one fell swoop he withheld
any acknowledgment that he was responsible for any specific wrongs, hedged
on whether there even were any wrongs, and skipped over any direct responsibility
for the harm that had been done.
b). Affect:
In order to truly accept responsibility, the offending party must also be visibly
affected personally by what s/he has done. I am troubled by it.
Scholars who have tried to parse this experience variously name that sense as
"regret" and "shame."< SUP> Whichever the affect,
the feeling has to be there! Nothing more offended commentators about President
Clinton's "apology" than its lack of felt regret. As Mary McGrory
(1998 p. A3) said about Americans listening to it, "Lying and adultery
they could handle, but not being sorry, especially after you're caught
and cornered, is unacceptable."2
It is, of course, possible to be over the top with this. Ted Turner offered
what one observer called "the mother of all mea culpas" to
television critics after his Cable News Network (CNN) retracted a report that
the United States military had used lethal nerve gas in Laos that targeted United
States defectors. "I couldn't hurt any more if I was bleeding," said
Turner. "He went on," said Peter Boyer, "to say that his humiliation
was so complete, his mortification so deeply felt, that no other sorrow he'd
known in his fifty-nine years - the suicide of his father, the breakup of his
first two marriages, the 1996 World Series defeat of the Braves by the Yankees
- compared with what he felt now. What had happened at CNN was, indeed, 'probably
the greatest catastrophe of my life.'" (Boyer, p. 28).
c). Vulnerability:
Finally, an apology is offered without defense. A key aspect of apology
is the vulnerability involved. An effective apology may be accepted,
but as Erving Goffman (1971) taught so well, an apology may be offered, forgiveness
may be begged for, yet it may be refused. The offender may have owned up to
the wrong inflicted, but this does not guarantee that the offended party will
accept the apology. Instead, the offended party can ignore or punish the offender
for the wrong done. The offended person may feel that the offense, although
acknowledged, is so incalculable -- so enormous -- that it is simply "unforgivable."
Martha Minow notes that "Albert Speer, the only Nazi leader at Nuremberg
to admit his guilt, also wrote, 'No apologies are possible.'" (Minow, p.
116).
The offending party is placed in a potentially vulnerable state in offering
the apology knowing that the chance exists that it may be refused. More than
anything else, it is vulnerability that colors apology. Indeed, many of us know
well the moment in relationships when the other party has been offended by something
and we weigh whether we will attempt to repair it. We know that attempting to
restore the relation will take effort. It won't be easy. Is it worth it? We
all have debated whether the relation was important enough to us to bother.
It is not only effort, but exposure we are weighing. If this doesn't
work, things may be worse.
The Exchange of Shame and Power
Where a serious injury has been done, an offer of reparations may accompany
the apology. It is crucial, though, that the person apologizing recognize that
there is truly nothing s/he can offer tangibly that will suffice for the damage
done. Nic Tavuchis (1991, p. 33) pinpoints the paradox of apology: "an
apology, no matter how sincere or effective, does not and cannot undo
what has been done. And yet, in a mysterious way and according to its own logic,
this is precisely what it manages to do." "An apology is inevitably
inadequate" (Minow, 1998, p. 114). It is a ritual exchange. "/W/hat,
we may ask, is offered in exchange? Curiously, nothing, except a...speech
expressing regret." Thus, the powerful formula of Aaron Lazare (1995, p.
42, italics added):
"What makes an apology work is the exchange
of shame and power between the offender and the offended."
Apology thus also involves
a role-reversal: the person apologizing relinquishes power and puts himself
at the mercy of the offended party who may or may not credit the apology.
This dynamic is also much in evidence in what has become known as Family
Group Conferences or community conferences that have developed in Australia
and New Zealand. Youthful offenders who have confessed to a crime agree to meet
in a group with the victim and his/her relatives and friends. As David Moore
(1993, p. 6) says, "the act of apology is clearly a central part of the
process that occurs." In this setting the offender submits to the power
of the group and thereby helps remove shame from the victim by taking it on
himself.
The empowerment that occurs here is not some 'power-balancing' that the mediator
manipulates. The ritual exchange involves a moral rebalancing offered
by the offender. "The apology reminds the wrongdoer of community norms
because the apology admits to violating them. By retelling the wrong and seeking
acceptance, the apologizer assumes a position of vulnerability before not only
the victims but also the larger community of literal and figurative witnesses"
(Minow, 1998, p. 114).
Restitution/Reparations
For some observers other elements must also be present for a "true"
apology. There must be a plea to repair the relation; the offending party must
mean it. To demonstrate this some require only that the offending party
genuinely appears sorry. Others require a clear indication that the situation
will not happen again. Still others require the offending party to make some
attempt at restitution. A casual "sorry" to a store owner after
dropping and breaking a glass vase won't cut it. Damages are owed. Or, as Bishop
Desmond Tutu says, "If you take my pen and say you are sorry, but don't
give me the pen back, nothing has happened."
There are others who require some change in behavior. John Hope Franklin, the
black historian, discussing the appropriateness of an apology for slavery observes
(1997, p. 61), "You can tell me you're sorry, but it won't make me feel
any better, it won't get me a better situation in life, a better job, an extra
month in school."
Although restitution or changed behavior are often indispensable components
of an acceptable apology, the author believes they are not essential elements
of an apology per se. Many times in apology the offending party faces
the fact that nothing can be done to right the wrong. The past cannot be erased:
the damage is done and cannot be undone. Here, the offender can only pray that
the offended may find the grace to forgive, but not because the offender has
found some equivalence to make up for the injury.
Repair Work
Apology is repair work. As Wagatsuma and Rosett (1986 p. 487) nicely
put it, "while there are some injuries that cannot be repaired just by
saying you are sorry, there are others that can only be repaired by an
apology." This is the power of apology - indeed, sometimes its necessity
- that it is the reparative mechanism available when relations have encountered
something that cannot be fixed, but which also cannot be ignored (Tavuchis,
1991, p.34).
And repair work is difficult. Need trousers cuffed? No problem. But repair a
torn pair of pants? You need to be a tailor.
Wash dishes? Sure. Repair broken china? A lot more delicate. And the work of
apology is both more difficult and more delicate.
II. APOLOGIES IN MEDIATION
Apology is an Acknowledgment
Mediation has long been viewed as "an alternative form of dispute resolution."
And "dispute resolution" does capture the nature of much mediation.
So regarded, mediation is a form of problem-solving. There is then a clear end-point
to mediation and it is to achieve a settlement.
Apology, however, is clearly not about problem-solving. Nor is it about negotiating.
It is, rather, a form of ritual exchange where words are spoken that
may enable closure. An apology represents more than an occasional event in mediation.
It is embedded in the very nature of the process. Mediation, after all, is frequently
about disputes in which at least one party feels injured by the other.
Along with negotiations over the facts of the case, demands for compensation,
and denunciations of the other side, there is often a felt need for some acknowledgment
of harm done, a need for some acceptance of personal responsibility for the
injury inflicted. In short, an apology.?
Assisting Clients with Apology
Can people authentically apologize in mediation? Yes, but in the author's experience,
many people need some assistance. People often need to get past the defensiveness
and fear of blame that preclude apology. The divorce mediation case of Alice
and Brad offers an example.
Alice and Brad
Alice and Brad disagreed about the support Brad would pay for their child. In
earlier years both Alice and Brad had held good jobs. As their lives unravelled,
however, Alice found herself having to borrow money to make ends meet and wanted
$700 a month in support from Brad. Brad had also lost his job and found himself
working in a local Wal-Mart earning less than $200 a week as a "stock-boy."
When Alice and Brad engaged in the mediation budgeting process, it became clear
that Brad needed $1900 a month just to get by, let alone satisfy what Alice
wanted. When asked what seemed "fair," Alice, after looking at the
numbers on the flip board said, "Well, if you just look at that, it seems
fair, but...," she trailed off.
The mediator responded: "It seems like there are other considerations for
you," "Yes," Alice said. "He left the marriage. I am trying
to ignore that, but none of this would have happened if he hadn't left. He had
the affair. He acknowledges it himself. I thought we had a partnership: I supported
his three kids from his first marriage and now that that's done, he takes off.
(Fighting off tears) I feel like a maid!"?
"So you feel there should be some compensation?" asked the mediator.
"Yes!"exclaimed Alice.
The mediator, meeting separately with Brad, asked "Do you have a response
to Alice's comments?"
Brad's first responses were defensive. The mediator continued: "It seems
important to the process that these concerns be spoken. Do you think you could
acknowledge her feelings?"
Brad responded: "What that means is that I give her more money?"
"No, not necessarily," the mediator said. "But it seems like
when her feelings aren't acknowledged, it keeps intruding on the financial decisions.
The personal issues have no other way to be raised. My experience is that it
makes a genuine difference if you can acknowledge how each other feels. I hear
Alice not blaming, but saying, 'I thought we had a partnership. Your leaving,
after I supported your kids, feels like I'm being used. Your decision has caused
damage - to both of us and our daughter.' It feels unfair to her."
"Look," he blurted out, "we were fine, and I had an affair. I
screwed up! But I also feel like I gave her all my money for years."
"So it sounds like you have a concern too. You feel like Alice hasn't acknowledged
all you did. You did screw up, but there was more to your marriage than how
it ended." "Yes."
When the parties were brought together again, the mediator announced that Brad
had something to say.?
"I did the best I could..." he started defensively. Then, he said,
"I screwed up. ... (pause) I'm sorry."
Alice was near tears.
Brad: "I also did what I could."
The mediator turned to Alice: "I hear Brad also saying, it is important
for him that his efforts are acknowledged."
Alice quickly threw off: "I did that. A couple of years ago. I said. 'I
thought we were doing okay.'"
The mediator said, "I think we are talking about right now, not the past.
You may have tried to say it; I don't think Brad heard it."
Alice: "I think you did the best you were capable of..."
"And is there a thank you for that part of it?" the mediator queried.
Alice (paused, then a smile) "Yes, thank you."
Both were in tears. The mediator commented: "I hear that this is not anything
you wanted, a divorce. It has changed things. Brad, you acknowledge that you
screwed up and it has hurt you, Alice, and caused damage. You're sorry for that.
But also that both of you put a lot of yourselves into this marriage and the
acknowledgment of that is important. Many people aren't able to do that."
The moment quickly passed, but the following week Brad brought in the documents
he had not produced until this point. The outstanding issues, including support,
were soon resolved.?
How It Is Done
Several things are worth noting about this apology in mediation. Alice and Brad
needed help to get to this apology. It was not imposed; it was offered.
But Brad and Alice could not get past either their blame or their defensiveness
by themselves. A critical step in the process was the caucus. Parties often
need preparation before they are ready to offer an apology. Finally,
the parties needed help with the words. There is a piece of back-leading
here on the part of the mediator, but the parties won't go along with this if
they are not ready. An apology involves such vulnerability that it is
safer - often, the only way it is safe enough - if the mediator puts the apology
in words and parties simply indicate their assent.
A powerful example of the outcome of assisting a party to apologize occurred
at the hearings of the Truth and Reconciliation Commission in South Africa.
After three dozen witnesses had testified over nine days about murders, assaults
and abductions associated with Winnie Madikizela-Mandela and her protection
squad, Madikizela-Mandela herself finally testified. But her testimony was combative,
denying even the most minor allegations against her as "fabrications"
and labeling the testimony of witnesses as "lies."
Lynne Duke, reporting on the hearing (1997, A1, 48), observed,
Madikizela-Mandela, 63, offered no hand of reconciliation to assembled
victims of her protection force - until Archbishop Desmond Tutu, the truth commission
chairman, begged her to do so. Invoking a historic bond of the Mandela and Tutu
family names, Tutu said that something in Madikizela-Mandela's once-great life
had gone "horribly, badly wrong. I beg you, I beg you, I beg you. Please.
You are a great person. You don't know how your greatness would be enhanced
if you said, 'Sorry.'"
Luke reports that
silence spread through the packed hall. After
a long pause Madikizela-Mandela finally responded. She apologized to the families
of her club's most brutally slain victims....: 'I am saying it is true: Things
went horribly wrong.' Madikizela-Mandela said, the sting of the day-long hearings
absent from her voice. 'For that I am deeply sorry.'"
Here we see the great
skill required for a third party to step in and assist in birthing an apology.
The risks were huge, the stakes high, the vulnerability enormous. Yet, Tutu
managed in the midst of very powerful group pressure to block it all out and
make a deeply personal appeal that did not make Madikizela-Mandela feel trapped
or coerced. It allowed her to save face.
Apology as Power-Balancing
We speak much in mediation about power-balancing. Often, however, our
solutions tend toward heavy-handed techniques: controlling the powerful, limiting
their dominance in the session, doing "reality" confrontations, threatening
the disasters that the alternative of a trial would bring, etc. The example
that follows, though, is an instance of power-balancing that parties themselves
achieved. The powerful offer their vulnerability. Through recognition,
the humiliated are empowered.?
Gary Geiger and Wayne Blanchard
An extraordinary example of such power-balancing is the story of Gary Geiger,
a young man who was shot at point-blank range during a robbery at a motel in
New York. The man who shot him, a 21-year-old named Wayne Blanchard, was later
captured. Blanchard was sentenced to 12-25 years in prison. Gary was not killed,
but he was severely wounded and traumatized. Recurrent nightmares, a massive
dose of post-traumatic stress, and the loss of his job all followed.
After years of watching his life disintegrate Gary finally decided the only
possible way to reverse his situation was to confront his attacker. Contacted
by Dr. Tom Christian through a Victim-Offender Mediation program within the
New York State penal system, Gary went to the New York prison where Wayne Blanchard
was incarcerated and met him face-to-face in a mediation.
The encounter became part of a TV show, "Confronting Evil." In it
Gary at one point with exquisite politeness asks Wayne: "Why, if you can
possibly help me, did the robbery get so violent?....Can you tell me, please,
why you shot me?" Elsewhere, Gary in an amazing exchange says: "I
know you've lost a lot. But I lost quite a lot too. The first phase was nightmares.
I couldn't sleep. I'd start shaking. I wondered, am I always going to be like
this?"?
Visibly moved when directly confronted with the damage he caused, the convict,
Wayne, responds: "I'm really truly sorry for what happened in that motel
that night... I'm not only sorry for the pain you feel but what your family
had to go through that brought your life to what it is now. I have a lot of
pain in me, too. I haven't had a chance to live...because of the stupid things
I did... I'm sorry,...I really am."
"I'm glad that you're sorry," adds Gary.
The exchange of shame and power between the offender and the offended is a dramatically
powerful encounter. Gary approaches the table with years of fear, powerlessness,
and trauma. Wayne, who had terrorized his victim, offers instead his vulnerability
and apologizes.
Several key elements of apology are visible here. This clearly was a ritual
exchange. Isolated and out of context, the speech here is formal to the point
of being rather weird: Gary: "I'm glad that you're sorry." Or again,
"Can you tell me, please, why you shot me?" "Please"?
It is a humbling ritual which allows "the wrongdoer /to/ symbolically bring
himself low," pleading for an opportunity to make things right with the
victim. "If there was something I could say or do that would help you,
I'd gladly do it."
And it raises up the victim. Fascinatingly, Gary is empowered in this exchange.
Before the conversation Gary says that for years he had "thought the offender
was a monster," a being whom he had fantasized as horribly powerful. The
end of this ritual of apology has Gary shaking off his shame and paralysis and
identifying in a different way with the power Wayne held over him: "The
last time you and I met you extended your hand to me in anger. Now, I want to
extend my hand to you as a sign of healing for both of us." Here
we see both sides of what transformative mediation talks about: both parties
have been empowered and they have gained new understanding of
each other. ?
We have said parties need help to have such an exchange. In the Gary-Wayne exchange
the mediator began by encouraging both parties to join in a ritual dance. He
invited the two men to speak as equals: "I want you two to talk to each
other. This is your process. Look at each other. Talk like two human beings,
man to man." In other words, not as jailed and free, not as victim and
perpetrator. Meet on a level playing field, man to man!"
They do. Each man has one kind of power over the other. Wayne has the power
of fear, of physical violence. Gary has both moral power - he is the victim
- and the power of freedom - he can walk out of the prison after this conversation.
Yet Gary relinquishes his power and identifies with the shame of Wayne's position:
"You've lost a lot; I have too....You're in prison; I've been in a sort
of prison myself." He validates Wayne as a participant in this conversation
with legitimate motivation, not just a convict. "It really takes a man
to admit when he's wrong and apologize as you just did. I waited 11 years to
hear that and I didn't know if I would ever hear it." And Wayne reciprocates,
validating Gary as a man: "I'd like to thank you for coming in today and
facing me after what I did to you."
One might be tempted to view such an exchange with cynicism; nothing has really
changed. Wayne remained in prison. But this exchange occurred before Wayne Blanchard
was up for parole in May 1994. From this experience Gary Geiger made a decision
to appear at Wayne's parole hearing and to ask the board to give Wayne another
chance. He asked for Wayne's release. ?
Since Wayne's release, Gary and Wayne have appeared throughout the state of
New York speaking of their experience.
III. APOLOGY AND THE ADVERSARIAL SYSTEM
When we ask whether apologies are appropriate in mediation, perhaps the elements
that most lead us to feel it is out of place are our system of law and the influence
of the adversarial system. It is the pairing of these two - the law and the
adversarial system - that create such uncongenial soil for apology. Our system
of jurisprudence is preoccupied with the defense of individual rights and the
fear of the establishment of blame. It is this fear of admitting culpability
that can effectively preclude apology.
Contrast our system with that of the Japanese, a country where the law operates
with a different set of assumptions. For Americans, apology is often equated
with an admission of individual liability under law; apology for the Japanese,
by contrast, plays a major role as a social restorative mechanism. It has an
important ceremonial role in preserving and restoring social harmony (Wagatsuma
and Rosett, 1986, pp. 466, 472).< SUP> ?
The very nature of our adversarial system is antithetical to the setting needed
to allow an apology to emerge. We have noted repeatedly that apology entails
vulnerability. The adversarial system, however, is structured as a contest.
It is organized to produce a winner and a loser and to issue judgments. It inescapably
generates defensiveness. It is a system that relies on rationalization:
there are differing standards of proof depending on differing kinds of wrong.
It deals in degrees of culpability ("first degree murder, justifiable
homicide, etc.) and rationalizes mitigating circumstances (it was due to an
impaired self, diminished capacity, external forces) (Tavuchis, 1991, p. 19).
Yet, this prevarication is precisely what apology is not, and cannot be, if
it is to work. Excuses rationalize: there was a crisis at home; I was tired,
distracted, not thinking, drunk, etc. In apology I was responsible. I did it.
No qualifications, no excuses. I can only beg your mercy and forgiveness.
This tension between the legal system and apology was most dramatically seen
in President Clinton's faux-apology on television. Some advisors recognized
the critical necessity for an apology. Democratic political consultant Robert
Shrum proposed a draft in which Clinton would have said: "'I let too many
people down' - including his family, the American people and Lewinsky - and
that 'none of this ever should have happened.' Clinton would have...said there
was 'no excuse' for his behavior and expressly apologized for his behavior."
But, reports The Washington Post (1998, A16), his personal attorney David
E. Kendall "wanted Clinton above all to do nothing that might increase
his legal jeopardy. This meant limiting apologies and being vague
about precisely what actions he was expressing regret about." ?
Perhaps the best examples of our legal aversion to apology are those cases involving
financial misconduct in which a company agrees to cease and desist from an activity
with no admission of fault (Wagatsuma and Rosett, 1986, p. 471). The examples
are legion: Sears' auto mechanics systematically charging for work not needed;
Prudential Securities pushing bad limited partnerships; Salomon Brothers buying
more bonds than permissible. In each case the company buys its way out of a
jam and, as John Rothchild (1994, p. 51) puts it, "announces concrete steps
to ensure that whatever they haven't admitted to doing will never happen again."
A Place for Apology
In American law, specific places do occur where apology may play a role. In
criminal cases, for example, apology and remorse often result in a mitigation
of punishment (Wagatsuma and Rosett, 1986, p. 479). Apology may also mitigate
damages in a defamation suit and may function as a bar to libel actions (Ibid.,
p. 478, 479). There are also instances where an apology has been a critical
element in settlements of lawsuits.
An apology was at the heart of a civil lawsuit brought against the Catholic
Diocese of Dallas. Eleven plaintiffs claimed the diocese had failed to protect
them from Rudolph Kos, a priest in the diocese, who was accused of sexual molestation
of the altar boys between 1981-1992. In the summer of 1997 a civil jury awarded
the plaintiffs $119.6 million, the largest judgment ever against a diocese.
The final attorney-negotiated settlement of $23.4 million dollars was stalled
over the plaintiff's demand for an apology, even after the sides had agreed
on the damages to be paid! The apology, when it came, was a powerful one.
Said Bishop Charles V. Grahmann: "I...want to, with very profound and deep
compassion, renew my apology to the victims and their families for the immense
suffering that has been a part of their lives..." "In exchange for
the bishop's apology, the...plaintiffs agreed to vacate the verdict" (Blaney
and Dooley, 1998, pp. 1, 15).
The Fear of Apology?
Nonetheless, in spite of such dramatic exceptions, the preoccupation of American
jurisprudence with defending individual rights and fearing any admission of
culpability effectively precludes apology in a great many cases.< SUP>
This, in spite of the frequent reports that often major civil cases could have
been avoided with a simple apology. A recent example was the case of Alonzo
Jackson, the black teenager who was stopped at an Eddie Bauer store in Fort
Washington, Maryland. A security guard thought Alonzo was shoplifting a shirt
and asked him to take the shirt off. He had purchased the shirt the day previously
and the case flared up into an $85 million dollar lawsuit against Eddie Bauer.
Alonzo's father, interviewed about the incident, said that at the time: "An
apology would have sufficed...and maybe a free shirt for (my) son." (Jones,
1997, pp. C1,4) Alonzo Jackson similarly said, "If they had apologized
from the start or given some response, the lawsuit wouldn't happen. It feels
like they don't care." Eddie Bauer, though they did apologize publicly,
never apologized privately, and indeed went on to lose this case.
President Clinton's handling of the Paula Jones lawsuit may be the best known
recent example of the enormous damage that can flow from the failure to apologize.
It now appears that Jones would have settled her famous lawsuit early on in
the process if she had received an apology. Jones' co-counsel at the time, Joseph
Cammarata, suggested the modest apology that might have sufficed: "We are
not trying to demean him. We don't need /details/...I think we need.... something
that acknowledges that he may have done something that is offensive and that
he regrets it..../along with/ an expression of regret and recognition that she
did nothing wrong"(Lehigh, 1997, E1). Asked whether such a settlement might
be considered, Robert Bennett, Clinton's lead attorney, gave a one-word reply
through an aide: "No." A costly decision for us all.?
Mediation, Apology and the Law
Even though mediation is meant to be an alternative to adjudication, when attorneys
step into mediation they seldom leave behind their adversarial instincts. When
attorneys are present it is generally far more difficult to hold open the space
for apology. "When nonlegal issues were addressed in mediation sessions,"
noted researchers, "lawyers acted as 'watchdog(s)' guarding against their
client's unwitting forfeiture of legal entitlements" (McEwen et al., 1994,
pp. 171-72 cited by Levi, p. 1186). Thus, an apology arouses suspicion for in
apology I relinquish all my justifications. I do not plead an impaired self,
diminished capacity or external forces (Tavuchis, 1991, p. 19). I forswear covering
myself in excuses, and allow myself to appear morally naked, unjustified, undeserving
in front of the other (Ibid., p. 18). This worries attorneys.
Attorneys would prefer for their clients to keep a respectful silence when in
the presence of the other party lest they unwittingly give away the store. Leading
questions are favored by attorneys as inquiries capable of one word answers
- a safeguard against clients speaking too freely. In apology, in stark contrast,
a client is invited not only to speak freely, but to appear nakedly, without
defense. From this perspective an apology in relation to the adversarial process
resembles David encountering Goliath. The one is loaded down with protective
armor; the other appears in utmost simplicity.?
The following is a fairly typical instance of the difficulty many attorneys
and defendants have with grasping the importance in employment disputes that
apology can have. A mediation client, a 77-year-old woman, filed a complaint
because her employer, having discharged her, reassured her she would not be
embarrassed before her colleagues on her last day. He promised to provide a
cover story for her and say that she was going on "leave of absence."
When she arrived that last day, however, she was humiliated to find that several
employees already knew she had been discharged. She took the discharge very
personally, protesting that there had never been a complaint about her work.
A new, young personnel manager who had taken a dislike to the older worker after
she had some recent illnesses, complained, "I don't want any grandmother
working for me!" The worker filed an age discrimination suit.
Whether the complainant could prove age discrimination was questionable. Although
she had been treated shoddily, shoddy is not illegal. The worker was grasping
for some redress. More than money, this woman wanted an apology. The attorney
for the defendant, however, and the personnel manager wanted to know what it
was that the complainant wanted. The client said again that what she wanted
was an apology.
"But we need to know what you want," persisted the attorney, looking
only for the dollar figure for which the woman would settle.
The complainant again dissolved into tears. She had wanted to retire with "grace
and dignity," she said. Instead, she felt humiliated in front of her colleagues
when she realized others knew she had been fired.
In caucus the mediator suggested to the personnel manager that if she could
offer it, an apology here would make all the difference.
Manager: "I'm not going to apologize. I've done nothing wrong," she
said.?
Attorney: "How much do they want?"
Mediator: "I don't know, but I believe it will be a lot less if there is
an apology first."
The personnel manager finally said she would try. When the joint session resumed,
the manager started well, but quickly slid into defensiveness.
"Ethel, I like you. We have worked together well. I'm sorry you felt we
discriminated against you, sorry you felt we were unfair. We never intended
to hurt you, and we never discriminated. We had a lot of work to do; we felt
it wasn't being done and we spelled that out in a meeting with you."
Ethel looked at the mediator for help. The mediator acknowledged her distress:
"Ethel, was this an apology for you?"
In the author's opinion, this was not an effective apology. It failed on every
count: it was not an acknowledgment, there was no affect, and finally, there
was no vulnerability.
CONCLUSION
Apology - its invitation, its expression, its reception - has been only minimally
explored outside mediation, and rarely in the literature and workshops of mediation
professionals. At most, apology has a place as a sub-set of discussions of forgiveness.
This reflects both an omission of an exchange vitally important in its own right,
and a loss of a key reparative opportunity.?
This essay has attempted a limited task: to clarify to nature of apology, to
claim for it a place in mediation, to describe some of the work involved in
preparing clients for apology, and to distinguish the nature of apology from
the character of the adversary system in order to highlight the impact of the
one on the other. Much work remains to be done if we are properly to understand
apology: the relation of apology to reparations, of the symbolic to the material;
the issue of the technology, art, and timing of apology; whether preparing people
to recognize, accept and respond to opportunities for apology is necessary or
properly the role of the mediator; the place of apology in different kinds of
mediation - victim-offender, divorce, commercial, and international; and more.
But we conclude here with the modest beginning of staking out the significance
of apology.
An apology may be just a brief moment in mediation. Yet it is often the margin
of difference, however slight, that allows parties to settle. At heart, many
mediations are dealing with damaged relationships. When offered with integrity
and timing, an apology can indeed be a critically important moment in mediation.
Trust has been broken. An apology, when acknowledged, can restore trust. The
past is not erased, but the present is changed (Kastor, 1998, p. D5).
Archbishop Desmond Tutu chaired the South African Truth and Reconciliation Commission
for two years. At its conclusion he spoke of the missed opportunity to heal
the wounds of apartheid if only whites had been able to match the willingness
of their black victims to forgive. His remarks captured the opportunity that
apology presents, the difficulty we have in seizing that opportunity, and the
role that third parties can have in inviting apology.?
”My dear white compatriots... you have been let
down by most of your leaders who have made you out to be too mean-spirited to
respond to the incredible magnanimity and generosity of the victims. Please
grasp this opportunity - or do you really agree with those leaders...? Is there
no leader of some stature and some integrity in the white community who won't
try to be too smart, who is not trying to see how much he can get away with,
but who will say quite simply: 'We had a bad policy that had evil consequences.
We are sorry. Please forgive us,' and not then qualify it to death?"(Reuters,
1998, p. A20).
Divorce mediation offers just such an opportunity
for clients to acknowledge they have acted in ways that have created injury
and are sorry for the damage they have done to their marriage and their spouse.
At the core, mediation can help people face damaged bonds and sort through whether
anything is still intact. If the marriage vow has been broken and trust betrayed,
does anything remain? Has everything been destroyed? An apology is often a means
of saying, "Yes, there has been a terrible wound here, for which I am truly
sorry. My intention is not to destroy you. I am ending this marriage, but I
would like to close that door gently, not slam it shut."
Wil Neville (1993) tells of meeting a woman who said she was getting ready to
go back to court for the seventh time with her former husband.
Wil exclaimed: "Wow, what is it you're wanting?"
She said, "More money."
He said, "I don't think you get money from court; I think you pay more
to go to court."?
The woman asked: "What do you think I want?"
Neville said, "I don't know, but if you're going back for the seventh time,
it says there's something really deep and really personal for you. My hunch
is you'd like to hear him say, 'You were a good spouse. We did have some good
times. I am genuinely sorry that the good times didn't go on.'"
Neville commented, "I noticed her tear up."
Finally she said, "If I could ever hear that, I would never bother him
again"!
References
Blaney B. and Dooley, T. "Diocese apologizes in Kos case." San
Francisco Star Telegram, July 8th, 1998, 1, 15.
Boyer, P. J. "The People's Network." The New Yorker, 1998,
28.
Cloke, K. "Mediating Sexual Harrassment Cases," Mediation News,
11, #3, Fall 1992, 20-21.
Duke, L. "Winnie Mandela: Murder Accusers 'Liars,'" The Washington
Post, December 5, 1997, A1, 48.
Editorial, "Mea Not So Culpa." The Washington Post. August
19, 1998, A20.
Felstiner,W. L. F., et al., "The Emergence and Transformation of Disputes:
Naming, Blaming, Claiming..." Law and Society Review, 15 1980-1981,
631-654.
Franklin, J. H. "America's Own Holocaust." Newsweek, December
8, 1997, 61.
Goffman, E. Relations in Public: Microstudies of the Public Order. New
York: Basic Books, 1971.?
Harris, J. F. "Words Were Clinton's Own, Too Much So, Aides Worry."
The Washington Post, August 19, 1998, A16.
Jones, T. "The Shirt Off His Back." The Washington Post, September
26, 1997, C1,4.
Kastor, E. "The Repentance Consensus: A Simple Apology Just Doesn't Cut
It." The Washington Post, Aug. 19, 1998, D5.
Kelly, M. "A Pathetic Speech - And Untrue." The Washington Post,
August 19, 1998, A21.
Lazare, A. "Go Ahead, Say You're Sorry." Psychology Today,
January/February 1995, 40-43, 76-78.
Lehigh, S. "Doing the smart thing: A Clinton apology-of-sorts would be
a good way to end Paula Jones suit." The Boston Globe, January 19,
1997, E1.
Levi, D. "The Role of Apology in Mediation." New York University
Law Review. 72, (5), November 1997. 1165-1210.
McEwen, C.A., and Milburn, T.W., "Explaining a Paradox of Mediation."
Negotiation Journal, January, 1993, 23-36.
McEwen, C.A., et al., "Lawyers, Mediation, and the Management of Divorce
Practice," Law and Society Review, 28, 1994, 149ff.
McGrory, M. "A Sorry Confession." The Washington Post, August
20, 1998, A3.
Minow, M. Between Vengeance and Forgiveness. Boston: Beacon Press, 1998.
Moore, D. B. "Shame, Forgiveness, and Juvenile Justice." Criminal
Justice Ethics, Winter/Spring 1993.?
Murphy, J., and Hampton, J. Forgiveness and Mercy. New York: Cambridge
University Press, 1988.
Neville, W. "Reframing and Mediation," Audiotape of Presentation at
the national Conference of the Academy of Family Mediators, Workshop F6, 1993.
Purdue, J. "'Haunted' UM pastor reconciles with his past," The
United Methodist REVIEW, February 21, 1997, 2.
Reuters, "Tutu Says Most White Ex-Leaders Lied to Truth Panel." The
Washington Post, August 5, 1998, A20.
Rothchild, J. "How to Say you're Sorry." Time, June 20, 1994,
51.
Scheff, T. J., Bloody Revenge: Emotions, Nationalism, and War. Boulder:
Westview Press, 1994.
Tavuchis, N. Mea Culpa: A Sociology of Apology and Reconciliation. Stanford,
California: Stanford University Press, 1991.
Wagatsuma, H. and Rosett, A. "The Implications of Apology: Law and Culture
in Japan and the United States." Law & Society Review, 1986,
20 (4), 461-498.
Notes
1President Clinton's
initial "apology" in the Monica Lewinsky affair has joined Richard
Nixon's as a classic example of a failed apology. See for example, Michael
Kelly's harsh assessment:"Our Bill has never really apologized for anything
in his life, and he didn't now. He never used the words "I'm sorry,"
and he acknowledged "regret" only glancingly and euphemistically.
Indeed, as he made quite clear, he wasn't sorry, except, as all adolescents
are, for getting caught. His passing imitation of an apology lasted for all
of one sentence. By contrast, he devoted nearly nine full paragraphs to offering
excuses...."(Kelly, 1998, A21).
2The press reported that Clinton's advisors recognized the need for
a felt expression of regret. The Washington Post reported that Paul Begala,
one of Clinton's advisors, who drafted the speech, included in his speech "far
more forceful language of regret." (Harris, 1998, P. A16).
3An interesting example in the American setting of the recognition
of the value, and perhaps necessity, of apology in a sexual harrassment case
is found in Ken Cloke's recommendation of a "surrogate apology." If,
he suggests, "the perpetrator is unable to apologize, the mediators may
do so as 'surrogate' apologists, saying: "'Perhaps what ____ should have
said to you is, I'm very, very sorry for what I did and I know that nothing
I can say can make up for what I have done." The mediators should say what
they would want to hear if they were the victim" (Cloke, p. 21).
4Lon Fuller has identified the distinctive mode of expression in
adjudication as a "device" that "gives formal and institutional
expression to the influence of reasoned argument in human affairs. As
such it assumes a burden of rationality not borne by any other form of social
ordering..." (italics added).
"Professor Fuller observes that the demands made outside the courtroom
may or may not be supported by principles. For example, one may appeal to generosity
or offer to exchange some benefit for satisfaction of the demand. Once one enters
the adjudicatory arena, however, a demand must become a claim of right supported
by principles," notes Levi, (1997 p. 1170, citing Lon L. Fuller, "The
Forms and Limits of Adjudication," 92, Harvard Law Review, (1978),
353ff.). (David Hoffman called the author's attention to the Levi article.)
"/I/t is no surprise that apologies are not a part of the courtroom repertoire.
Unless legally recognized...they do nothing to adjust the allocation of rights
rationally between the parties."
The formalizing of the injury is only one part of the deconstruction of the
space in which an apology might appear. The effect of the adversarial system
in occluding the original insult which initiated a conflict also means that
people may long since have lost sight of why they were fighting. As McEwen and
Milburn note (1993, p. 28, cited by Levi, p. 1198, n. 142), initial tangible
goals of apology, changed behavior and compensation often are lost in the "emerging
metadisputes" which "highlight goals of victory, vindication, or retribution.
Reprinted with permission in the MCDR ADR Articles 2006