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Do apologies work in construction mediation (ABA Presentation)

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A look at whether apologies work in construction mediation and whether you actually need to say "I'm sorry" for the strategy to be effective. Presented at 2018 American Bar Association - Forum on Construction Law Annual Meeting in New Orleans

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Do apologies work in construction mediation (ABA Presentation)

  1. 1. DO APOLOGIES WORK IN CONSTRUCTION MEDIATION? Burns Logan Corporate Counsel: Jacobs Private Mediation: www.burnslogan.com © 2018 Burns Logan (www.burnslogan.com)
  2. 2. IS THE ADVICE WE, AS ATTORNEY’S, HAVE BEEN GIVING ABOUT APOLOGIES BEEN WRONG? Headlines from the Web: “What To Do If You Are In A Car Accident: Don’t Apologize” “Never Apologize – Even if you think the accident might be your fault, don’t apologize…” Is this Good Advice? Yes! © 2018 Burns Logan (www.burnslogan.com)
  3. 3. EVIDENCE RULES SUPPORT THE ADVICE NOT TO APOLOGIZE You don't want to help prove the other side's case by offering an apology when you have other valid legal defenses. Out of Court Apologies are Hearsay, but allowed as an exception as: (1) Spontaneous present sense impression. (2) Excited Utterance (3) Then existing mental, emotional, or physical condition. (4) Statement against party interest (5) Possible other exceptions…. © 2018 Burns Logan (www.burnslogan.com)
  4. 4. UNIVERSITY OF MICHIGAN HEALTH SYSTEM Rick Boothman – Head of claims 1997 - Original program “defend and deny” - New Program - Advise patient of error - Admit the error - Make a fair offer to settle the case - By 2007: - Number of lawsuits decreased by 50% - Legal Expenses cut by ½ © 2018 Burns Logan (www.burnslogan.com)
  5. 5. LEGISLATING APOLOGIES • Many states have passed legislation intended to make certain apologies inadmissible in lawsuits • Colorado Apology Statute: • applies only to cases involving "…an unanticipated outcome of medical care…." Colo. Rev. Stat. § 13-25-135 (2016). • Of the 36 states which have "apology statutes", only 3 apply to torts outside of medical malpractice ○ Indiana ○ Missouri ○ Iowa © 2018 Burns Logan (www.burnslogan.com)
  6. 6. LEGISLATING APOLOGIES However, even in medical fault states, many statutes exclude the apology itself from admissibility as evidence, but not any acknowledgment of fault. See Ind. Code Ann. § 34-43.5-1-5 (2016) “I’m Sorry. This is my fault” • “I’m Sorry” is inadmissible • “This is my fault” is admissible Cheryl DeBussy v. Glenn E. Graybeal, 2016 Del. Super. LEXIS 616 • Doctor “apologized” for mistake • Doctor said he made a “mistake” and cut in the “wrong place” • Court held “apology” inadmissible, but statement of “mistake” and cut in the “wrong place” were admissible © 2018 Burns Logan (www.burnslogan.com)
  7. 7. APOLOGIZING THROUGH MEDIATION • The mediation is protected • State ADR rules • FRCP 501 & 408 • In Colorado, CRS 13-22-307 states: • Mediation Confidentiality: “Any party or the mediator or mediation organization in a mediation service proceeding or a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any information concerning any mediation communication or any communication provided in confidence to the mediator or a mediation organization….” © 2018 Burns Logan (www.burnslogan.com)
  8. 8. DO APOLOGIES WORK FOR MEDIATION? Data indicates: Yes Chris Hyman study: • 90% of cases settled when an apology was made • Only 35% settled when no apology was made © 2018 Burns Logan (www.burnslogan.com)
  9. 9. INITIAL CONSIDERATIONS • Does your client believe they have a “moral obligation” to apologize? • CRPC 2.1 – “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.“ • Jonathan R. Cohen, The Immorality of Denial, 79 Tul L. Rev. 903 (2005); The Culture of Legal Denial, 84 Neb. L. Rev. 247 (2005) • Will the apology help or hurt your overall strategy? • What is your BATNA? (Read Negotiation Genius, Deepak Malhotra and M. H. Bazerman) • Jennifer K. Robbennolt, Attorneys, Apologies, and Settlement Negotiation, 13 Harv. Negotiation L. Rev. 349 (2008). ▪ Professor Robbennolt notes that her research shows "apologies influenced how individuals evaluated a settlement offer in terms of its ability to make up for the harm suffered, how they appraised their need to punish the other party, and how they assessed their willingness to forgive the other party." ▪ In addition, claimants "receiving apologies judged an offer to be more adequate [and]…increased the tendencies of recipients to accept a particular settlement offer." © 2018 Burns Logan (www.burnslogan.com)
  10. 10. IS “SORRY” ENOUGH? • Roy J. Lewicki, Beth Polin, Robert B. Lount. An Exploration of the Structure of Effective Apologies. Negotiation and Conflict Management Research, 2016; 9 (2): 177 DOI: 10.1111/ncmr.12073. ▪ The purpose of the research was to "subject the structural components of an apology….to rigorous empirical examination from the social psychological, deductive perspective." ▪ This empirical examination was intended to "explore and better understand if and when certain types of apologies may be more compelling than others." © 2018 Burns Logan (www.burnslogan.com)
  11. 11. COMPETENCE VIOLATION OR INTEGRITY VIOLATION? • Competence Violation - trust violations related to a mistake which may or may not have been "under [the actor's] control“ • Apologies generally help • Integrity Violation - relate to a mistake where the "fundamental character and honesty" of the wrongdoer are in question • Apologies may not help © 2018 Burns Logan (www.burnslogan.com)
  12. 12. WHY WOULD AN APOLOGY WORK FOR COMPETENCE VIOLATIONS? • Authors noted “following some form of violation…, victims are highly sensitive since the violation most likely threatens their confidence in their own judgement and sense of personal efficacy.“ • An apology can eliminate "[u]ncertainty and tension…[for which] the victim seeks information from the violator that works to restore their own sense of judgment and efficacy.” © 2018 Burns Logan (www.burnslogan.com)
  13. 13. 6 COMPONENTS OF AN APOLOGY 1. Expression of Regret – “I’m sorry….” 2. Explanation – “I did this because….” 3. Acknowledgement of Responsibility – “I am responsible for this because….” 4. Declaration of Repentance – “I won’t do it again….” 5. Offer of Repair – “I am offering you….” 6. Request for Forgiveness – “Please forgive me….” Authors conducted studies with more than 700 people to judge the effectiveness of each of these elements in an apology. © 2018 Burns Logan (www.burnslogan.com)
  14. 14. ARE ALL 6 COMPONENTS REQUIRED? No! 1. Expression of Regret – “I’m sorry….” 2. Explanation – “I did this because….” 3. Acknowledgement of Responsibility – “I am responsible for ….” 4. Declaration of Repentance – “I won’t do it again….” 5. Offer of Repair – “I am offering you….” 6. Request for Forgiveness – “Please forgive me….” © 2018 Burns Logan (www.burnslogan.com)
  15. 15. YOU DON’T REALLY HAVE TO APOLOGIZE OR SAY “I’M SORRY” 1. Explanation – “I did this because….” ▪ An Explanation for why the violation may have occurred, which is an effort by the violator to affect the victim's sense-making about the violation in a way that might make the violation seem more understandable, less intentional, or less dissonance-creating to the victim ▪ Tell them why you did it. ▪ Eliminate incorrect assumptions about your client being a "bad" person 2. Acknowledgement of Responsibility – “I am responsible for ….” ▪ The violator assumes responsibility for having created the violation, hence limiting the number of alternative explanations for why the violation occurred ▪ Reducing incorrect assumptions 3. Offer of Repair – “I am offering you….” ▪ restore the tangible or economic damage that occurred as a result of the violation • Do not need to include: Expression of Regret, Declaration of Repentance, or Request for Forgiveness © 2018 Burns Logan (www.burnslogan.com)
  16. 16. TAKEAWAYS • If you are going to make an apology in a case where there is legal risk, I would limit the apology to three components: • Explanation of the Offense • Acknowledgment of Responsibility • Offer of Repair • The other components don't make a significant difference in how the apology is perceived or its intended effect. • If you have committed an integrity-based violation, you are in a tough spot. But, you've already messed up, so I'd lean toward doing what your 2nd grade teacher said…apologize. © 2018 Burns Logan (www.burnslogan.com)
  17. 17. WWW.BURNSLOGAN.COM © 2018 Burns Logan (www.burnslogan.com)

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