“Begin Mediation With an Apology”

“Begin mediation with an apology.” This is common advice in Christian mediation, but it’s surprising to hear it from a lawyer who does employment and commercial mediation. Eric Meyer is both a mediator and an advocate in mediations, and he wrote an article on eleven practical tips, especially for attorneys who represent parties in mediation, to help make remote mediations successful. In fact, many of his tips apply to both in-person as well as on-line mediations, such as thinking strategically about the timing of the mediation in the life of the case, and determining whether the case needs a facilitative or an evaluative mediator.

I especially appreciate his terse advice regarding written mediation summaries prepared by each advocate ahead of the mediation: “ad hominem attacks, legalese and passive voice” do not add value.

But I’m most intrigued by his advice to begin the mediation with an apology. He seems to think this is especially helpful in online mediation, because “there is always a place for compassion at remote mediation.” Mediators have complained about the difficulty of expressing and interpreting compassion in online mediations, and this is one way to address it directly. But it’s worth considering in all mediations.

He recommends that both plaintiff and defendant begin with an apology. This is right out of the Christian mediation playbook. Indeed, the preparation for Christian mediation (often referred to as “conflict coaching”) includes encouraging each party to examine their own contribution to the conflict, in accordance with Jesus’ teaching to “get the log out of your own eye” first, before going after the “speck” in your neighbor’s eye (Matthew 7:5). When each side is willing to acknowledge, confess or apologize to the other, Christian mediators know the parties are ready to meet face-to-face.

Mr. Meyer’s recommendation isn’t based on obedience to biblical commands, but rather on strategy. As he notes, the other side will be caught off guard – “but in a good way.” In our mediation trainings, we demonstrate mediation of a wrongful death case where the defendant’s opening includes an “I’m sorry” to the plaintiff widow; the audience is stunned. Most admit they’ve never seen that happen in actual cases, while acknowledging how powerful it is. Opening with an apology can go a long way towards negotiating a good resolution.

But it’s also risky. I recall a mediation where the defendant apologized in his opening; it backfired. Not only did it not display the “compassion” that Mr. Meyer seeks, it hardened the plaintiff, who perceived it as insincere and self-serving. Had the defendant alerted me before the joint session, I may have been able to help him prepare a more effective apology (because this was not a Christian mediation, we had not discussed it). But maybe not.

Mr. Meyer urges, “Say ‘I’m sorry’ for something – literally anything!” I applaud his recognition of the power of apology, and of the value in talking about non-monetary options, but I wouldn’t advise treating the apology so glibly. He also suggests “saving face” by having the mediator deliver the apology. Again, this should be considered thoughtfully, as it too is risky (“She didn’t have the guts to tell me herself?”).

Nevertheless, it’s refreshing to see a litigator appreciate the value of apology, and his advice could get some parties in the right mindset. Even considering apologizing forces a party to get a bit humble, and to look at the other guy as something less than pure evil—and that mindset in itself can promote a mediated resolution.

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