First Do No Harm

Australian mediator Greg Rooney posted an interesting article on mediate.com this month, The Profound Apology, about managing apologies in mediation. Three aspects stand out: (1) Don’t permit an offender in a sexual abuse case to apologize to the victim; (2) Prepare each party ahead of time by telling them not to prepare; (3) An example of a formal apology that might come from an institution responsible for harm done.

(1) Not permitting an abusive offender to apologize: In cases involving sexual and extreme physical abuse, he advises against permitting an offender to deliver a personal apology to the victim, out of fear that the original harm will “be compounded” for the victim. Instead, he advises mediators to follow the rule of “do no harm,” by having a third party apologize on behalf of the actual offender.

The advice to “do no harm” is sound. It comports with the mediator’s ethical duty to honor party self-determination by truly eliciting what the parties—not just one, but all, and not their lawyers but the clients themselves—seek to accomplish in the mediation. This duty takes on heightened importance in cases of power imbalance, such as those involving sexual or physical abuse; sexual harassment could be added to this category. If the victim in mediation still has less power than the offender, the victim might agree in mediation to hear the offender’s apology, not out of the victim’s desire for an apology but rather out of fear of the offender, thus perpetuating the abuse. This is the concern Rooney would have mediators avoid. I imagine Rooney is making it a blanket statement because mediators cannot always discern whether a party is agreeing to hear an apology out of genuine desire or out of a sense of coercion, so it’s safer simply to adopt a rule of never permitting an abuser to apologize directly to their victim.

I have not mediated a case involving sexual or physical abuse, but I know colleagues who have done so. In some cases, permitting the abuser to apologize (in Christian cases, to confess sin) to their victim can begin the healing for both parties. While “do no harm” may be their default stance, mediators also need to discern when to “do some good,” by permitting offenders to apologize to their victims in those rare cases where it may help.

(2) Preparing each party for a mediated apology: Rooney recommends that the mediator develop a personal relationship with both the victim and the offender to discern whether an apology will be helpful. But he then advises that the offender not prepare ahead of time what to say. This is the opposite of my practice, so I’m intrigued by Rooney’s reasoning: He acknowledges this is a “paradox” that “helps create dissonance” and believes it draws the offender “away from the rational intellectual plane,” which is essential if the offender is going to connect personally with the victim.

Having presided over delivery of ineffective apologies, my response as a mediator has been to prepare both parties carefully. I typically give the offender the “Seven A’s of Confession” from Peacemaker Ministries as an outline to help them collect their thoughts, encourage them to write out their thoughts, and even rehearse with me privately. I also typically talk with victims about their expectations, and how they’ll respond if they don’t hear everything they want. In my experience, people appreciate this aid.  Not preparing them feels like abandonment. But I do like Rooney’s emphasis on the importance of the offender connecting personally with the victim. I wonder if preparation and personal connection are mutually exclusive; perhaps the ideal mediator does both?

(3) Example of a formal apology: Rooney also describes the very different situation where a person apologizes on behalf of an institution (a police department, a church, a business, etc.). Here he agrees that preparation helps, and offers a sample of what the person might say. Mediators could add this sample to their tool-kit to aid in these situations.

 

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