Do apologies work in construction mediation (ABA Presentation)

DO APOLOGIES WORK
IN CONSTRUCTION
MEDIATION?
Burns Logan
Corporate Counsel: Jacobs
Private Mediation: www.burnslogan.com
© 2018 Burns Logan (www.burnslogan.com)

IS THE ADVICE WE, AS ATTORNEY’S, HAVE BEEN
GIVING ABOUT APOLOGIES BEEN WRONG?
Headlines from the Web:
“What To Do If You Are In A Car Accident: Don’t Apologize”
“Never Apologize – Even if you think the accident might be your fault, don’t
apologize…”
Is this Good Advice?
Yes!

EVIDENCE RULES SUPPORT THE ADVICE NOT TO
APOLOGIZE
You don't want to help prove the other side's case by offering an apology when
you have other valid legal defenses.
Out of Court Apologies are Hearsay, but allowed as an exception as:
(1) Spontaneous present sense impression.
(2) Excited Utterance
(3) Then existing mental, emotional, or physical condition.
(4) Statement against party interest
(5) Possible other exceptions….

UNIVERSITY OF MICHIGAN HEALTH SYSTEM
Rick Boothman – Head of claims 1997
- Original program “defend and deny”
- New Program
- Advise patient of error
- Admit the error
- Make a fair offer to settle the case
- By 2007:
- Number of lawsuits decreased by 50%
- Legal Expenses cut by ½

LEGISLATING APOLOGIES
• Many states have passed legislation intended to make certain apologies
inadmissible in lawsuits
• Colorado Apology Statute:
• applies only to cases involving "…an unanticipated outcome of medical
care…." Colo. Rev. Stat. § 13-25-135 (2016).
• Of the 36 states which have "apology statutes", only 3 apply to torts outside
of medical malpractice
○ Indiana
○ Missouri
○ Iowa

LEGISLATING APOLOGIES
However, even in medical fault states, many statutes exclude the apology itself from
admissibility as evidence, but not any acknowledgment of fault. See Ind. Code Ann.
§ 34-43.5-1-5 (2016)
“I’m Sorry. This is my fault”
• “I’m Sorry” is inadmissible
• “This is my fault” is admissible
Cheryl DeBussy v. Glenn E. Graybeal, 2016 Del. Super. LEXIS 616
• Doctor “apologized” for mistake
• Doctor said he made a “mistake” and cut in the “wrong place”
• Court held “apology” inadmissible, but statement of “mistake” and cut in
the “wrong place” were admissible

APOLOGIZING THROUGH MEDIATION
• The mediation is protected
• State ADR rules
• FRCP 501 & 408
• In Colorado, CRS 13-22-307 states:
• Mediation Confidentiality:
“Any party or the mediator or mediation organization in a mediation service
proceeding or a dispute resolution proceeding shall not voluntarily disclose or
through discovery or compulsory process be required to disclose any
information concerning any mediation communication or any communication
provided in confidence to the mediator or a mediation organization….”

DO APOLOGIES WORK FOR MEDIATION?
Data indicates: Yes
Chris Hyman study:
• 90% of cases settled when an apology was made
• Only 35% settled when no apology was made

INITIAL CONSIDERATIONS
• Does your client believe they have a “moral obligation” to apologize?
• CRPC 2.1 – “In rendering advice, a lawyer may refer not only to law but to
other considerations such as moral, economic, social and political factors,
that may be relevant to the client's situation.“
• Jonathan R. Cohen, The Immorality of Denial, 79 Tul L. Rev. 903 (2005); The
Culture of Legal Denial, 84 Neb. L. Rev. 247 (2005)
• Will the apology help or hurt your overall strategy?
• What is your BATNA? (Read Negotiation Genius, Deepak Malhotra and M.
H. Bazerman)
• Jennifer K. Robbennolt, Attorneys, Apologies, and Settlement Negotiation,
13 Harv. Negotiation L. Rev. 349 (2008).
▪ Professor Robbennolt notes that her research shows "apologies influenced how
individuals evaluated a settlement offer in terms of its ability to make up for the
harm suffered, how they appraised their need to punish the other party, and
how they assessed their willingness to forgive the other party."
▪ In addition, claimants "receiving apologies judged an offer to be more adequate
[and]…increased the tendencies of recipients to accept a particular settlement
offer."

IS “SORRY” ENOUGH?
• Roy J. Lewicki, Beth Polin, Robert B. Lount. An Exploration of the
Structure of Effective Apologies. Negotiation and Conflict Management
Research, 2016; 9 (2): 177 DOI: 10.1111/ncmr.12073.
▪ The purpose of the research was to "subject the structural components of
an apology….to rigorous empirical examination from the social
psychological, deductive perspective."
▪ This empirical examination was intended to "explore and better understand
if and when certain types of apologies may be more compelling than
others."

COMPETENCE VIOLATION OR INTEGRITY VIOLATION?
• Competence Violation - trust violations related to a mistake which may or
may not have been "under [the actor's] control“
• Apologies generally help
• Integrity Violation - relate to a mistake where the "fundamental character
and honesty" of the wrongdoer are in question
• Apologies may not help

WHY WOULD AN APOLOGY WORK FOR
COMPETENCE VIOLATIONS?
• Authors noted “following some form of violation…, victims are highly
sensitive since the violation most likely threatens their confidence in their
own judgement and sense of personal efficacy.“
• An apology can eliminate "[u]ncertainty and tension…[for which] the victim
seeks information from the violator that works to restore their own sense of
judgment and efficacy.”

6 COMPONENTS OF AN APOLOGY
1. Expression of Regret – “I’m sorry….”
2. Explanation – “I did this because….”
3. Acknowledgement of Responsibility – “I am responsible for this because….”
4. Declaration of Repentance – “I won’t do it again….”
5. Offer of Repair – “I am offering you….”
6. Request for Forgiveness – “Please forgive me….”
Authors conducted studies with more than 700 people to judge the
effectiveness of each of these elements in an apology.

ARE ALL 6 COMPONENTS REQUIRED?
No!
1. Expression of Regret – “I’m sorry….”
3. Acknowledgement of Responsibility – “I am responsible for ….”
4. Declaration of Repentance – “I won’t do it again….”
6. Request for Forgiveness – “Please forgive me….”

YOU DON’T REALLY HAVE TO APOLOGIZE OR SAY “I’M
SORRY”
▪ An Explanation for why the violation may have occurred, which is an
effort by the violator to affect the victim's sense-making about the
violation in a way that might make the violation seem more
understandable, less intentional, or less dissonance-creating to the victim
▪ Tell them why you did it.
▪ Eliminate incorrect assumptions about your client being a "bad" person
2. Acknowledgement of Responsibility – “I am responsible for ….”
▪ The violator assumes responsibility for having created the violation,
hence limiting the number of alternative explanations for why the
violation occurred
▪ Reducing incorrect assumptions
▪ restore the tangible or economic damage that occurred as a result of the
violation
• Do not need to include: Expression of Regret, Declaration of Repentance, or
Request for Forgiveness

TAKEAWAYS
• If you are going to make an apology in a case where there is legal risk, I
would limit the apology to three components:
• Explanation of the Offense
• Acknowledgment of Responsibility
• Offer of Repair
• The other components don't make a significant difference in how the
apology is perceived or its intended effect.
• If you have committed an integrity-based violation, you are in a tough spot.
But, you've already messed up, so I'd lean toward doing what your 2nd
grade teacher said…apologize.

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Do apologies work in construction mediation (ABA Presentation)

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