An Amazing Use of Mediation

July 24, 2018 – 4:39 pm

The “mediation” between Michigan State University and victims of sports doctor Larry Nassar keeps unfolding in ways atypical of mediations. The latest irregularities were revealed last week: not only was the mediated agreement made public (rare, even in cases involving public entities) but it included provisions involving the Michigan legislature (possibly unique).

The settlement, reached in May and approved by the MSU Trustee Board in June, was made public when it was filed in US District Court in Grand Rapids on July 13, and is expected to be approved by Judge Gordon Quist this week.

According to mlive, it included this under a list of “conditions precedent”:

“Michigan Legislation.

(1) Michigan Senate Bill 872 (2018) either shall

(A) fail to be enacted into law because it is withdrawn, defeated by vote, or otherwise fails to pass, or

(B) be amended to reduce the timeframe to bring otherwise time-barred Nassar-related claims to 90 days following enactment of Senate Bill 872 (2018); and

(2) Michigan Senate Bills 875 (2018) and 877 (2018) shall fail to be enacted into law because they are withdrawn, defeated by vote, or otherwise fail to pass.

The parties agree that this condition has been satisfied.”

The agreement was thus tied to the actions of a third-party, which seems risky for an agreement of this magnitude. Because it was labeled a “condition precedent” in the agreement, I don’t think it was an attempt to “bind” a third-party to the mediated agreement, as some have argued. But, even though the agreement purported to have some level of confidentiality, if this condition were leaked to the Legislature, it may have felt pressured to act on pending legislation. Whether or not the Michigan Legislature knew about this provision, it cooperated with it – Senate Bill 872 was adopted after being amended as specified, and Senate Bills 875 and 877 have languished in committee.

Without getting into the politics, it’s a fascinating use of mediation.

 

By abfifer | Posted in Mediation | Comments Off on An Amazing Use of Mediation

A Look at the Elon Musk Apology

July 19, 2018 – 11:47 am

Elon Musk apologized yesterday for accusing a British cave diver of being a pedophile. The diver, Vern Unsworth, is one of the heroes who assisted the Thai boys trapped in a cave the last couple weeks. Musk had offered to bring his mini-submarine to the cave site, confident it would assist in rescuing the trapped boys; Unsworth apparently didn’t think it would be helpful, and the two exchanged mean tweets. Musk tweeted last Saturday that Unsworth was likely a pedophile, and he decided yesterday to apologize for that:

“His actions against me do not justify my actions against him, and for that I apologize to Mr. Unsworth and to the companies I represent as leader. The fault is mine and mine alone.”

The good parts of this apology:

  • Mr. Musk is taking responsibility here, especially with the line about it being solely his fault.
  • He’s addressing not just his immediate “victim” but the secondary ring of people who were offended, namely, his companies’ employees and investors. (USA Today reported that Tesla shares fell after Musk’s attack on Unsworth.)

 

The not-so-good parts:

  • It isn’t exactly clear what he is apologizing for. He says simply, “my actions.” Accusing someone publicly of being a pedophile is defamatory — serious stuff. A vague phrase like “my actions” leaves listeners wondering whether he really knows what he did that was so offensive.
  • He just couldn’t resist the temptation to shoot an(other) arrow at his “victim” in his attempt at an apology. Any aspect of blame-shifting usually undermines the sincerity of an apology. Mr. Unsworth said some nasty things to/about Mr. Musk too, but the initial apology is not the place to point that out. It would’ve been better if Mr. Musk had simply said, “There is no way to justify the terrible thing I said of him.”

 

By abfifer | Posted in Apologies | Comments Off on A Look at the Elon Musk Apology

Advice on Apologies in Litigated Cases

June 27, 2018 – 12:09 pm

A Canadian litigator recently offered some advice regarding an apology in litigated cases. Canada has a federal “apology act,” much like many U. S. states, which makes a statement of sympathy or regret inadmissible to prove liability. But the law has limitations, that lawyers are duty-bound to point out to their clients, lest clients think this will get them off the hook. For example, if the offender saves his apology until trial, it is not protected and can be used as evidence of liability.

Michigan’s “apology act” is limited to medical malpractice actions. It doesn’t have the specific exception about trial and deposition testimony that Canada’s act has, but it is limited to protecting statements made to the victim and the victim’s family, so a statement of sympathy made in court might not be protected under the statute.

Nevertheless, a sincere expression of regret can go a long ways towards preventing a lawsuit in the first place.

 

By abfifer | Posted in Apologies | Comments Off on Advice on Apologies in Litigated Cases

Roseanne Barr Acknowledges God in Apology

June 26, 2018 – 7:37 am

A month ago, Roseanne Barr tweeted a very derisive comment about former President Obama’s close advisor Valerie Jarrett. When Ms. Barr was criticized for her tweet, she blamed it on the fact that she had taken the sleep-inducing drug Ambien. One consequence of her tweets is that ABC removed her from the new hit show that bore her name.

Ms. Barr quickly issued a brief apology: “I apologize to Valerie Jarrett and to all Americans. I am truly sorry for making a bad joke about her politics and her looks. I should have known better. Forgive me-my joke was in bad taste.” Yesterday her friend Rabbi Schmuley Boteach posted an apology he recorded in a recent interview with Ms. Barr. It included these comments:

“I said to God, ‘I am willing to accept whatever consequences this brings because I know I’ve done wrong. I’m going to accept what the consequences are,’ and I do, and I have. But they don’t ever stop. They don’t accept my apology, or explanation. And I’ve made myself a hate magnet. And as a Jew, it’s just horrible. It’s horrible.”

Barr said of her tweet that she “didn’t mean what they think I meant.” She noted that she has black children in her family. “I never would wittingly say that a black person is a monkey. I just wouldn’t do that.” She is presumably trying to refute the assumption that her comment was racist, which she insists she is not.

“But I have to face that it hurt people. When you hurt people even unwillingly there’s no excuse. I don’t want to run off and blather on with excuses. But I apologize to anyone who thought, or felt offended and who thought that I meant something that I, in fact, did not mean. It was my own ignorance, and there’s no excuse for that ignorance.”

She also addressed the Ambien tweet: “That’s no excuse, but that’s what was real.”

“I’ve lost everything. And I regretted it before I lost everything.” She said this presumably to curb the suspicion that she was apologizing only because she’d lost her TV show.

Ms. Barr was weeping through much of the interview. From the perspective of analyzing an apology, “tears” are an interesting factor. If the words and tone are right, tears can amp up the “sincerity” quotient. But many listeners – especially, in my humble experience, men – tend to deem a tearful apology less credible than a non-tearful one.

Roseanne Barr’s apology is pretty good, for a public apology. She specifically addresses the offense, takes full responsibility for it, and acknowledges the consequences–sort of. If her comment about God truly is a prayer for help to accept the consequences, she’s on the right track. Many of her words sound like an explanation, which isn’t always helpful in an apology. She does not offer what she’s going to do to prevent such offenses in the future — for example, forswear Twitter. And one wonders if she apologized privately to Ms. Jarrett.

By abfifer | Posted in Apologies | Comments Off on Roseanne Barr Acknowledges God in Apology

Insights into the Art of Apology

June 16, 2018 – 2:52 pm

NPR broadcast a very interesting story this week on the art of apology, exploring what makes or breaks an effective apology: “A Case Study in How to Apologize for a War  Crime.” In this case, there were two attempts to apologize–the first further angered the victims, the second was even better than expected.

The backdrop was World War II, when American soldiers were imprisoned in Japan and suffered under conditions which violated the Geneva Convention. In 2009, the Japanese ambassador attempted to apologize to a room full of former POWs, but the wording was so weak that it prompted half the soldiers in the audience to turn their backs on the speakers. A good apology is specific, but this one was vague, e.g., apologizing “to all those who lost their lives in the war.” It did not say for what the speaker was apologizing.

One of the soldiers, James Murphy, still traumatized from his horrific abuse laboring in the copper mines of Mitsubishi, said he wanted to hear something along the lines of, “Sorry and that you won’t do it again.”

In this case, the “mediator” (the story refers to her as “the apology broker”) was a woman, Kinue Tokudome, who had grown up in Japan but lived in the U.S. She discerned the difference between the Japanese idea of apology — “soaked in shame” — and the POWs’ desire for an acknowledgement of the wrongs done to them. She was able to arrange for Mitsubishi executives to apologize to POWs imprisoned there. Mitsubishi had previously refused to apologize, contending that to admit the history of forced labor would be to saddle Japan with a centuries-long “burden of the soul.” But the year before last, Mitsubishi executives met with James Murphy and a few other POWs still alive, and Mitsubishi senior executive Hikari Kimura said, “When I understand the sad truth of the matter, I feel a pained sense of ethical responsibility as a fellow human being.” Then all the executives bowed. Mr. Murphy said it “was almost embarrassing” how much feeling they put into it.

In this case, the offender made an incorrect assumption about what an “apology” would say, or what the victim wanted to hear. The bi-cultural woman who served as “the apology broker” was able to identify the crossed signals and facilitate an effective apology. Sometimes, just finding out what the victim needs to hear can prompt a good apology.

By abfifer | Posted in Apologies | Comments Off on Insights into the Art of Apology