Why your lawyer could be wrong about apologies

By — on / Conflict Resolution

If you’ve ever had a minor car accident in which neither you nor the other driver was obviously at fault, familiar advice may have run through your head as you got out of your car: Don’t say you’re sorry! Don’t say you’re sorry!

Most of us have been cautioned in such contexts that an apology can be equivalent to an admission of guilt—and just one step away from an unfavorable settlement or even a lawsuit. This conventional wisdom may indeed be appropriate for fender benders, where upset feelings and wounded pride aren’t necessarily at stake. But professor Elizabeth A. Nowicki of Tulane University Law School suggests that in more serious situations, a sincere, well-timed apology can actually be the key to keeping you out of court.

Nowicki notes that lawyers often view apologies as costly admissions of liability and thus advise their clients against issuing them. In her review of research on legal disputes, however, Nowicki finds that the opposite can be true: apologies can actually improve the odds of settlement, reduce costs, save time, and decrease the fallout from damaged reputations and relationships. For example, hospitals that adopt full-disclosure and apology procedures for medical errors can reduce the number of lawsuits they face and achieve less-expensive claim settlements, Columbia Law School professor Carol Liebman and mediator Chris Hyman found in one study. Carefully delivered apologies appear to restore dignity and trust in a way that sheer financial compensation cannot.

Cautioning that “a bad apology can sometimes be worse than no apology at all,” Nowicki suggests that lawyers give their clients the following four pieces of advice on delivering an effective apology. It’s advice that any negotiator who is to blame for an unfortunate event can use:

  1. Take responsibility when warranted. A negotiator who expresses sympathy but not responsibility may find the other side is unmoved. If you’re clearly to blame, apologize for your mistake in a forthright manner.
  2. Have the right person apologize. Consider having both a senior official from your organization and someone close to the situation deliver the apology in a formal meeting. Such efforts give injured parties an opportunity to ask questions and take note of the apology’s sincerity, Liebman and Hyman found in their research on hospitals.
  3. Apologize early. If you’re clearly to blame for a serious mistake, consider apologizing before your counterpart has the chance to file a legal complaint. In such cases, concerns about a potential lawsuit may be outweighed by the necessity of making amends in a timely, Clarify remedies. In addition to apologizing, tell the other side how you or your organization will address the injury you’ve caused (such as paying for future medical costs). Then outline the steps you will take to make sure such mistakes aren’t repeated.

Apologies aren’t always advisable, as when the facts of a case are under dispute. If you have doubts about whether you’re to blame, don’t feel you need to take the fall for a regrettable incident; try to hash out the issue with your counterpart instead. But if you know you’re at fault, discuss with your lawyer the wisdom of taking responsibility to help parties resolve their differences and move forward.

Adapted from “Why Your Lawyer Could be Wrong about Apologies,” first published in the Negotiation newsletter, June 2010.

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