Are You Kidding? Apologize? A Lawyer s Guide to the Minefield of Apology

Transcription

1 Vermont Bar Association Seminar Materials 57 th Mid-Year Meeting Are You Kidding? Apologize? A Lawyer s Guide to the Minefield of Apology March 21, 2014 Hilton Burlington, VT Faculty: Angela Eastman, Esq. Emily Gould, Esq.

2 Apology Presented by Emily Gould, Esq. and Angela Eastman, Esq.

3 You ve gotta be kidding, apologize? Why do we hate to apologize?

4 Reasons We Avoid Apology Generally: Liability Fear of Making Things Worse Outcome unknown Vulnerability Threats to identity Threat to client relationship Shame Guilt Lazare s Explanation: Apologizers fear the reactions of the apologizee Apologizers are embarrassed or ashamed of the image they would have of themselves Lack of awareness that offender s behavior offended the other person

5 What is at stake during apology? For the Recipient? For the Giver?

6 Transactional View of Values Creates a Lens of Balance of Power Person A Person B

7 Unilateral/Transcendent View of Values (Nelson Mandela Stance) Dignity Dignity Dignity

8 Genuine Apology Involves a Shift from Transactional to Unilateral Stance Me You Dignity Dignity

9 What are the benefits of apology?

10 The Benefits of Apology Diminish negative emotion Increase trust Increase capacity for analytical thinking Increase capacity for dialogue Stimulates reciprocity Creates possibility for forgiveness Creates conditions that foster creative synergistic solutions

11 Benefits of Apology Medical Malpractice 36 states have passed a form of I m sorry medical malpractice legislation. Most states only protect expressions of apology and condolence (i.e., Nebraska and Iowa), but some states go so far as protecting expressions of fault (i.e., Colorado). University of Michigan Health System implemented the Medical Error Disclosure Program resulting in a decrease in: (1) annual litigation costs, (2) the average time to resolution of claims and lawsuits, and (3) the number of claims and lawsuits. *Note, this success came well before any legal support for the policy (Michigan did not pass I m Sorry legislation until April 2011).

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13 What is lost when we miss an opportunity for apology?

14 Elements* of Good Apology Thanks Acknowledgement of the other person s perspective and/or experience. Explanation without excuses Expressions of pain, discomfort, including regret, remorse, shame, grief Taking responsibility Reparation/Prevention/forbearance *Bold/Underline represents Lazare s Four Elements

15 Elements of a Good Apology (1) Acknowledgment: A valid acknowledgement of the offense that makes clear who the offender is and who is the offended. The offender must clearly and completely acknowledge the offense Responsibility and accountability. Acknowledgement of the offended individual s perspective and/or experience. (2) Explanation: An effective explanation without an excuse. Explanation demonstrates that offense is unlikely to recur.

16 The 4* Elements of a Good Apology (3) Expressions of: pain, remorse, shame, humility, discomfort, grief, regret, which show that the offender recognizes the suffering of the offended. (4) Reparation: A reparation of some kind, in the form of a real or symbolic compensation, for the offender s transgression. Prevention, forbearance.

17 The X Factor of Apology Apology is non-linear and non-rational Arises spontaneously Apology is transformational for both parties Forgiveness as a part of apology Shift from ourselves to others beyond ourselves.

18 Practical Considerations Is the use of apology appropriate in this case? What are client goals? Capacity is client capable of apologizing (good apology)? Apology delivered by client or attorney? Apology in mediation? By letter or face-to-face? Timing of apology Supporting clients to make an effective apology creating a template A bad apology can be worse than no apology How to create favorable conditions for apology

19 References On Apology by Aaron Lazare AMA summary of states apology inadmissibility laws: The University of Michigan s Early Disclosure and Offer Program:

20 Contact Emily Gould Angela Eastman