Thursday, May 8, 2014

Apologies in Mediation: Are they Effective or Overstated?



I had the privilege of learning from Professor Peter Robinson of The Straus Institute for Dispute Resolution that a well-articulated apology can go a long distance towards resolving even the most contentious commercial dispute.  Yet, it is such a difficult word to summon when being sued by another person, as it may suggest acceptance of blame, guilt and responsibility for some conduct which has legally been "denied".

In employment mediation, particularly where there has been a longstanding relationship between employer and employee, I find that there are many very solid non-monetary options which can go a long distance towards resolving the dispute.  Beginning with a candid explanation for why the termination occurred, beyond the terse and legalistic "not for cause" severance letter, an employee can begin to see the reason why no early explanation was offered.  Often, the employee is desperately seeking alternative employment and payment of a fair severance plus a letter of reference or even assistance in finding another job can go a long way.

As a mediator, I try to find out the underlying interests of the parties before I begin to work through the financial negotiation.  Though it may be hard to orchestrate, a genuine apology for the conduct that got the parties to the litigation may unlock the doors towards an end to it.  How often do you hear an apology and is it a sign of "backing down" or just human decency?