February 13, 2025 – 4:11 pm
California has adopted a law authorizing the California State Bar to certify dispute resolution providers. The Alternative Dispute Resolution Certification Program requires neutrals to comply with ethics and disclosure standards, and to provide a complaint procedure, in order to be certified. The author of the bill, Senate Judiciary Committee Chair Tom Umberg, says this law is especially aimed at neutrals who make decisions, such as arbitrators, but the statute covers “alternative dispute resolution firms, providers, and practitioners.” CA Bus & Prof Code § 6173(a)(1).
The certification is voluntary. It is available to anyone, whether or not they are active members of the State Bar. It offers different levels or tiers for certification, and permits the State Bar to charge an annual fee for the certification.
Presumably this certification program is designed to prevent system abuses like those perpetrated by Attorney Tom Girardi, who conspired with neutrals to bilk his clients out of millions of dollars due them through mediations and arbitrations. But the State Bar was one reason Girardi was able to get away with his theft for so many years, because Bar staff turned a blind eye to client complaints. Apparently the Legislature believes the State Bar has learned its lesson and can now be trusted to certify neutrals.
Oftentimes a “certification” warrants that the person has completed certain educational or vocational requirements, and/or has a certain amount of experience in the particular field. The California ADR certification makes no such representation. As one practitioner noted, this program codifies procedures most California dispute resolution providers already follow.
January 31, 2025 – 12:18 pm
News Group Newspapers issued a public apology this week to Prince Harry for invading his privacy for years by hacking his phone and publishing private information about him. Prince Harry had sued News Group, which owns several British tabloids, and the apology was part of a settlement on the eve of trial.
The apology acknowledges The Sun newspaper’s “serious intrusion” into the Prince’s private life between 1996 and 2011, “including incidents of unlawful activities.” It also apologizes for News of the World’s “phone hacking, surveillance and misuse of private information.”
An essential element of an effective apology is to take responsibility; this apology does that. Acknowledgment of the specific harm done is also important, and this apology does that well, noting the intrusion “into his private life as well as the private life of Diana, Princess of Wales, his late mother, in particular during his younger years.” It also apologizes for the damage inflicted on his relationships.
Restitution is another essential element of a good apology; the News Group is paying Prince Harry “substantial damages.”
Two other elements of a good apology are weak here. One is regret or remorse. News Group might argue that this is implied in its use of the word “apologizes,” but this is typically done by use of the word “sorry.” That is missing. The recipient of an apology usually would also like to hear what the offender will do to avoid offending again. Will the payout and negative publicity be sufficient to reform NGN’s behavior?
Also notable is what is not in the apology, that could’ve weakened it. There’s no weak or indefinite language, like, “If we did anything to hurt you…” There are no excuses. There is no blaming (unless one wants to read that into the mention of “private investigators working for The Sun”).
This is a public apology by an entity; both of those circumstances make apologies more delicate. Given that, this is a pretty good apology.
December 3, 2024 – 2:19 pm
Last week I wrote about the apology from Salem Media to Mr. Mark Andrews for defaming him as an illegal voter in a film it distributed. Yesterday, the creator of the film, Dinesh D’Souza, issued a statement of apology to Mr. Andrews.
In the film, “2000 Mules,” Mr. Andrews is depicted as a “mule” who harvested fake ballots. In his statement, Mr. D’Souza explained that new information had recently come to light showing that the surveillance videos he used in the film, including the footage that depicted Mr. Andrews, were based on inaccurate information; and that, had he known that, he would’ve made the film differently. (The State of Georgia investigated and determined that Mr. Andrews was voting legally and hadn’t done anything wrong.)
This statement is not really an apology. It’s at best an acknowledgement of wrong, and comes across more like an excuse/explanation. It’s good that Mr. D’Souza is publicly acknowledging that he would’ve done things differently if he had had accurate information. But he doesn’t call it a “mistake,” and he doesn’t take responsibility for the “inaccurate information.” Instead, Mr. D’Souza blames others for providing him with the information, as if he had no responsibility himself to verify it before basing the film on that misinformation. Instead of acknowledging the harm he caused Mr. Andrews, which Mr. Andrews said included death threats to him and his family, the statement says he is “sorry for any harm he believes he and his family has [sic] suffered.” In other words, he doesn’t believe Mr. Andrews was harmed.
Strangely, he says he still has confidence in the premise of the film, that there was systematic election fraud in the presidential election of 2020. This undermines his assertion that the new information led to a new understanding which prompted the apology. If he really wanted to apologize sincerely, he would’ve omitted this paragraph.
Mr. D’Souza says he’s not apologizing in hopes of settling the lawsuit that Mr. Andrews has filed against him, but rather because “it is the right thing to do.”
November 25, 2024 – 5:33 pm
A Christian company apologized recently to a man it had defamed.
Salem Media Group distributed a documentary made by former Christian college president Dinesh D’Souza called 2000 Mules, which purported to explain how the presidential 2020 election results could not be trusted. It showed various Georgia voters, asserting that they were committing a crime by voting illegally. One of those voters was Mark Andrews, an African-American. The Georgia Bureau of Investigation had cleared Andrews of wrongdoing, finding that he was legally dropping off ballots for members of his family.
Mr. Andrews sued Salem Media Company, Mr. D’Souza, an organization called True the Vote, and other related parties for defamation in October 2022, alleging that he and his family received threats of physical harm, including death threats, as a result of the film and accompanying book. This spring, media outlets reported that Salem settled the lawsuit with Mr. Andrews for an undisclosed amount of money. Presumably the settlement also required a public apology from Salem Media Group.
The media reported this past May that Salem posted an apology on its website; I have been unable to find this apology on the Salem Media website. According to media outlets, Salem stated,
“It was never our intent that the publication of the ‘2000 Mules’ film and book would harm Mr. Andrews. We apologize for the hurt the inclusion of Mr. Andrews’ image in the movie, book, and promotional materials have caused Mr. Andrews and his family.” Salem also stated that it “relied on representations made to us by Dinesh D’Souza and True the Vote.”
Thoughts regarding this apology:
- Offender’s intent: not wise to lead with a statement about the offender’s intent. The listener doesn’t really care about the offender’s intent. The victim felt harm whether or not the offender intended to harm.
- Specific harm caused: Good apologies are not vague about the harm caused; they get specific. To say, “the inclusion of Mr. Andrews’ image…” reduces the offense to something innocuous. According to his court complaint, the movie accused Mr. Andrews of being a criminal, one of many “mules” who not only committed ballot fraud but also joined riots in Atlanta, burned people, pulled them out of their cars and beat them up. (Plaintiff’s Complaint, Para 41, p. 16). Although the film didn’t name Mr. Andrews, his face was apparently shown several times, as was his vehicle, including the license plate. The offense was not just the inclusion of Mr. Andrews’ image, but the implication that he was a low-life criminal.
- At least they didn’t say, “for any hurt this may have caused.” They said, “for the hurt…”
- Relying on someone else’s representations: This is actually another offense, not a defense. It’s rather surprising for a news organization to admit that it didn’t verify the truth of what it published. They could have turned this around by admitting that this was another thing they got wrong, and apologizing for this too.
- Future behavior: A statement describing what they learned from this, and what they’ll do to ensure it never happens to anyone else, would have lent more credence to this apology.
November 7, 2024 – 9:19 am
In a claim not seen often, a party to a mediation asked for sanctions for the other party’s failure to send someone with full settlement authority to the mediation. After Charles Leach died in his Tesla, which crashed and caught fire in 2021, his widow, on behalf of his estate, sued Tesla for wrongful death in a California federal court (Donna Leach v Tesla, U.S. District Court, Northern District of California, 2023). The case went to mediation in September 2024. The lawyers for Mr. Leach’s estate claim that the two sides reached a deal in mediation, only to learn, hours into the mediation, that the Tesla representative, a products liability lawyer, lacked the authority to approve a settlement on his own. At this point, the plaintiff claims, they had already provided Tesla with confidential information. The estate lawyers felt that they had no choice but to breach the settlement agreement. The estate then asked the court to award it $9,600 in legal fees as a sanction against Tesla. They argued that Tesla violated a court order in failing to send someone with full settlement authority, and that they wasted their time going to mediation.
The court ruled yesterday that the estate cannot pursue sanctions.
Michigan’s court rules on mediation require that the attorneys attending a mediation must have the authority necessary to participate fully in the proceeding. MCR 2.410(D)(1). The court rule does not specify penalties for failure to comply. Parties lacking full settlement authority can be a frustration to a mediation, and the threat of sanctions might be one way to address the problem. But there are other ways, including careful preparation beforehand.
