Title: Apologies and Settlement (PDF)
Author: Jennifer K. Robbennolt (University of Illinois)
Publisher: Court Review, vol. 45, no. 3
Date Published: Summer 2010
This study proves it never hurts to say you’re sorry — even in a courtroom. The author found that apologies aid in the resolution of a variety of legal cases, including wrongful firings, injury cases, and malpractice lawsuits. Although lawyers frequently advise their defendants against apologizing, because the apologies can be interpreted as admissions of guilt, the author of this study found that an apology gave the wronged party a sense of satisfaction and closure, resulting in faster settlements and lower demands for damages. It turns out, however, that the nature of the apology itself is critical: Accepting responsibility proved much more effective than merely expressing sympathy, which many plaintiffs took as being too casual and insincere. Apologies were especially effective in mediations with disgruntled and former employees.
In an initial survey of 300 individuals, the author offered a hypothetical scenario in which a pedestrian was injured by a bicyclist. Those asked to play the role of the pedestrian were offered either no apology or several kinds of apologies during settlement negotiations. Apologies that admitted blame were the most effective because participants reported that they gained respect for their counterparts, which often served to reduce the amount of money they demanded and increased their willingness to settle. However, participants who received apologies of any kind also judged settlement offers in general as being fairer and expressed less desire to punish the other party.
The research confirmed previous studies that showed that expressions of remorse are directly related to the way legal settlements unfold, and that most people will lower their bottom-line price if offered an apology. But lawyers see things differently: In a second study of 190 defense attorneys, the author found that they distrust the apology strategy because they fear, perhaps mistakenly, that it can be leveraged into bigger settlements. The author points out that in fact attorneys may be hesitant to let their clients apologize because settling cases quickly for less money can result in lower legal fees.
Lawmakers have awakened to the power of apologies; as many as 35 states have statutes, most of them instituted in the past decade, that seek to encourage apologies in arbitration and pretrial proceedings by making them inadmissible in court; in other words, they won’t be held against defendants in trial at a later date. The author argues that apologies can be especially valuable — and palatable to defense attorneys — in employment disputes because statements made during mediation are also barred from being used in subsequent legal action. A skilled mediator will seek to find out whether an apology by one party will lead to a compromise to begin to bridge the gap in monetary issues such as severance pay or compensation, which often prove to be stumbling blocks in negotiations. Moreover, employment mediation or arbitration cases are especially good candidates for apologies, because in those circumstances plaintiffs and defendants communicate directly and have an ongoing or recent relationship, in which feelings of respect are paramount. The business implications are evident: A thoughtful apology can help resolve impasses in any type of negotiation.
Bottom Line: Apologies can help opponents reach legal settlements, especially in employment disputes, because they give the wronged party a sense of justice and satisfaction. This study shows that apologies can lead to faster settlements and lower demands for damages; they can also help parties avoid costly litigation, particularly when the expression of remorse includes an admission of blame.
- Matt Palmquist was a founding staff writer and is currently a contributing editor at Miller-McCune magazine. Formerly, he was an award-winning feature writer for the San Francisco–based SF Weekly.