“I don’t care if it’s Tiger Woods, Bernie Madoff, or Toyota, if an apology comes late it’s going to be seen as phony,” Atlanta lawyer Jimmy Faircloth told the Los Angeles Times recently.  Faircloth is among a number of litigators representing plaintiffs suing Toyota for alleged acceleration incidents involving its automobiles.  Most lawyers agree the Toyota acceleration litigation will be long, complex, involve multiple jurisdictions and reach “historic proportions.”  See “Lawyers Circle Toyota

I beg to differ with Faircloth, because I believe it is never too late for a sincere apology.

Here’s the dilemma:  Most product manufacturers that allegedly cause injury are advised against apologizing because it could be viewed as an admission of wrongdoing.  Most injured parties require something more than an apology to be made whole.  Defendants realize that no matter what, they are still on the hook for monetary damages, so why bother.  Besides, they think that no matter what they say, it won’t ever be enough.  Just ask Faircloth.

So why apologize?  I submit that it is almost always the right thing to do – both ethically and strategically.  From a strategic perspective, people (plaintiffs) will fight longer and harder in the absence of an apology.  And why is that?  Because absent expressions of real remorse or empathy from the alleged wrongdoer, the aggrieved person has no choice but to fill that vacuum with his or her own worst imagination.  Couple that with the frustration of not having expectations of an apology or empathy met, and you have a recipe for explosion.

Wouldn’t a sincere apology from the Pope regarding the Catholic Church sex abuse scandal ease a good deal of the public’s outrage about the Church’s handling of the incidents?  Without that, people fill that void by assigning to the Church feelings of apathy, indifference, even tacit acceptance, and it is that array of feelings to which people are reacting.

Akio Toyoda Apology from knx1070.comIn Toyota’s case, company President Akia Toyoda apologized publicly.  He said the important words, “I am sorry for any accident Toyota drivers have experienced … and I will do everything in my power to ensure such a tragedy never happens again.”  You can listen to his entire apology here:  http://aiminst.com/toyoda.

Is he sincere?  Only time will tell, but the world will be watching Toyota’s production quality very closely, and skeptically, to see.

Litigants don’t have the opportunity to offer or hear apologies such as the one Toyoda made to Congress and the world.  In civil litigation for monetary damages where lawyers and witnesses do all the talking, apologies are almost never a part of the equation (except sometimes on TV dramas).

Mediation is different, however.  In mediation, litigants come together for the express purpose of talking about their disputes in an environment that both encourages and facilitates apologies as part of resolution.  For some parties, hearing the words “I’m sorry” is part of being made whole.  For defendants, having the opportunity to say and mean those words can lift a burden they may have carried for years.

I have seen apologies work wonders for all involved in sexual harassment and discrimination cases, medical malpractice cases, product liability and personal injury cases.

Once, in a sexual harassment suit I mediated, after the plaintiff told how the harassment had affected her entire life, the defendant shocked us all when he literally confessed. “I did it,” he said.  “I did everything she just described.”  He could only do that because of the protections provided by mediation.  He went on to apologize, explaining that he thought they were all just goofing around, that everyone in their workplace flirted with everyone, that he never dreamed his actions affected her the way they had  and that if someone had ever made his wife feel the way she was describing, he would want to strangle the guy.  He apologized sincerely, asked for her forgiveness, and wanted to know what he could do to make it better.  Those are the three components of a real apology.  More important, his words gave that plaintiff exactly what she needed.  The modest amount of money she accepted meant less to her than the apology.

In a medical malpractice case, when the plaintiff talked of losing her elderly mother, the hospital’s risk manager answered, not by denying liability, but by telling her own story of loss – her elderly father in a hospital.  Upon hearing that, the plaintiff felt she had someone on the other side who understood her.  We were able to resolve that case in about 30 minutes with just one monetary offer.  Read more about this at http://aiminst.com/advopen.

So, my advice to Faircloth — and all who are skeptical about the motives behind apologies — is that the words “I’m sorry” mean something, no matter how long you have to wait to give or receive them.


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40 Responses to “The Only Apology Too Late is the Apology One Never Said”

  1. Martin Kotowski Says:

    I completely agree with Lee Jay. I am constantly surprised at the degree to which hurt feelings intrude into the resolution of lawsuits in which we would expect they have no place, such as commercial lawsuits. The mediation is a perfect place to address such issues, and a timely “I am sorry, I did not know how this affected you” may allow the parties to do business in the future.

  2. Kylie Batt Says:


    Faircloth is among a number of litigators representing plaintiffs suing Toyota for alleged acceleration incidents involving its automobiles…..

  3. Lee Jay Berman Says:

    From Michael Curry via Linked In:

    Good post. But Faircloth is correct that a late apology if often “seen as phony.” Even when it is not. A late apology seen as sincere is better than no apology — which is your point. An apology seen as insincere can be worse than no apology because it can seem manipulative.

    Of course, Faircloth may not want an apology for his clients — it doesn’t put bread on the table. If that is unfair to Faircloth, I apologize — sincerely, of course.

  4. Lee Jay Berman Says:

    From Rebecca Bowman via Linked In:

    I agree that a sincere apology is always better than no apology, whether timely or late. In my work as a faith-centered conciliator, a “late” apology that represents a change of heart can be even more powerful than a “timely” apology, especially is accompanied by an explanation of the change in position. This is true both in terms of resolving the dispute and in providing a witness in the secular world.

    As to the bread-on-the-table issue, I couldn’t begin to number the employment disputes that could have been resolved at little or no cost by an employer with a sincere apology, in part because a sincere apology reflects an understanding (even if not an agreement) that the behavior was offensive or unacceptable.

  5. Lee Jay Berman Says:

    From Seth Davis via Linked In:

    Who sang “sorry is the hardest word?”-Elton John I believe. Unfortunately, for so many, an apology is a perceived admission of guilt/negligence. As a mediator, I always begin offering an apology for being there, for their circumstances or my condolences for the party’s loss. This goes a long way in trust.

  6. Lee Jay Berman Says:

    From Rajiv Chelani via Linked In:

    What can I say Lee…
    apart from agreeing.

    I work in Restorative Justice (besides other types of mediation) and I have very closely watched the power of apology. A drug user apologised to the person from where he stole (a faith based group) after a few years of the offense. What did the victim say? he said I accept your apologies and also now giving him a chance to repair the harm which he caused by supporting his organsiation.
    Both are happy; hopefully one person who’s been in and out of the prison could become a part of our society.


  7. Lee Jay Berman Says:

    From Megi Tavdumadze via Linked In:

    Also, I believe you are better of not apologizing at all if you don’t mean it.

  8. Lee Jay Berman Says:

    From Rosalind Cresswell via Linked In:

    Doug Wojcieszak has done a lot of work on this subject in healthcare and trains organizations to understand the power of apology and the best way to address an apology. Check out their work at
    [http://www.sorryworks.net|leo://plh/http%3A*3*3www%2Esorryworks%2Enet/gVU5?_t=tracking_disc ]

  9. Lee Jay Berman Says:

    From Rajiv Chelani via Linked In:

    I agree Megi, I work where there could be apologies for the sake of being sorry. It could potentially help reduce the sentence of offenders. Unless it is sincere, it doesn’t mean much

  10. Lee Jay Berman Says:

    From Robin Greave via Linked In:

    The key is whether there is remorse i.e. that that the apology is from the basis that given the opportunity the apologiser would do things differently. Often apologies can mean a regret that things have to be this way or have turned out this way but no real remorse for a behaviour. Both an “apology of remorse” and an “apology of regret” can be sincere but only the former has any real healing power.

  11. Lee Jay Berman Says:

    From Rosalia Panarello via Linked In:

    This last comment sounds judgmental. How can one measure whether an apology based on remorse can have real healing power as opposed to an apology based on regret? Both can be just as effective as long as the person is sincere. Do you honestly believe the average person will begin analysing whether he/she is basing his/her apology on regret or remorse?

  12. Lee Jay Berman Says:

    From Robin Greave via Linked In:

    Rosalia – simply because something cannot be measured surely does not mean it is irrelevant? How can the impact of an action depends upon the ability to reflect upon it of the person who acts? Surely meaning is critical here? Perhaps others can find a better terminology for the distinction but you seem to be saying that the distinction is irrelevant as only sincerity counts. Another way to describe the distinction I am drawing would be that one apology denies responsibility for the effect of the action whereas the other expresses the wish to rollback time and to act differently. How is this regret (the wish to have acted differently) not relevant to the impact of the apology concerned?

  13. Lee Jay Berman Says:

    From Rosalia Panarello via Linked In:

    I never wrote it was irrelevant. That is your interpretation and perception of my comment. If this comment offends you, I apologize.

    My point here was that when the average person sincerely feels bad for an action he/she committed and apologizes, I am not convinced they begin to anlayse and distinguish whether they are apologizing because they feel remorse or regret. They just feel bad and want to make things right. Both motivations whether it be remorse or regret are interchangeable and can have positive healing impacts as long as the apology is sincere.

  14. Lee Jay Berman Says:

    From Robin Greave via Linked In:

    Rosalia – no offense taken. And I agree with everything you have written. However … there remains the second form of apology, whatever word labels we agree to for it. When you write “They just feel bad and want to make things right.”, I have labeled that as “remorse”. The other form of apology entails no remorse/contrition, it has no sense of culpability within it, Often these second forms of apology give rise to argument if the person aplogised to does not quickly accept the apology. It is a sincere apology in the sense that the person concerned would have preferred not have had the problem at all, but it does not contain any sense that they would act differently if the situation presented itself again. I think you might call this second form insincere. For me it is not insincere but rather carries a different meaning. Distinguishing on the basis of the quality of contrition/remorse is in my opinion helpful because is easier to test than sincerity.

  15. Lee Jay Berman Says:

    From Madison Thompson via Linked In:

    Is there room in Faircloth’s time frame for the offending party to sincerely contemplate the impact of their actions/words and then make a sincere apology rather than a timed, rote, crafted, litigious neutral statement?

  16. Lee Jay Berman Says:

    From Rosalia Panarello via Linked In:

    Good question.

  17. Lee Jay Berman Says:

    From Elissa Feit via Linked In:

    I agree that it is never too late to apologize. With the following caveat: Never say, “I apologize, BUT…” There goes the apology. I have great difficulty personally and professionally with anyone who cannot apologize. There are people I have met in life who simply state, “I never apologize.” Interestingly, they do get away with it with other people, but that is a whole other story.

  18. Lee Jay Berman Says:

    From Jeffrey Hutson via Linked In:

    I’m not sure “I apologize” followed by “if I’ve offended you” works either. If something is offensive an apology, unqualified is in order. If something inoffensive has offended someone (politicians are easilty offended) empathy may be in order, but I’m not sure the apology is sincere.

  19. Lee Jay Berman Says:

    From Elissa Feit via Linked In:

    I firmly believe that even a very late apology sincerely given without qualification is better than no apology; however life is full of people who simply “never apologize” and are not even apologetic about that ridiculous stance. It never ceases to amaze me how even the most intelligent people think that a problem will just go away with the passage of time. In fact, the opposite is true. When these type of people waltz through life and get away with this position it just perpetuates the behavior. It ultimately takes someone who says-the buck stops here-and is willing to walk away from a relationship that is so skewed.

  20. Lee Jay Berman Says:

    From Madison Thompson via Linked In ADR, Conflict Resolution and Mediation Exchange Group:

    “IF” and “BUT” are the two biggest apology killers in the business. One sets the premise that the injurious circumstances might be all in the head of the aggrieved party and the other says the injuring party was right and justified in their actions under a certain set of circumstances.

  21. Lee Jay Berman Says:

    From Deborah Denson via Linked In Group:

    I recently took a class called Apology and Forgiveness. We read On Apology by Lazarus. he contends that apologies that include acknowledging the harm done, expressions of remorse, acknowledgment of the offenders part, and acts of reparation are the most effective. My personal mantra… everything before the “but” is bulls*$!* and “I am watching your feet and not just listening to your words!”

    Seriously, apologies have great power if done well. And they can greatly increase the harm done if done poorly or just for effect.

  22. Lee Jay Berman Says:

    From Madison Thompson via Linked In Group:

    Dr. Aaron Lazare’s book “On Apology”, as noted by Deborah, is a great source for teaching and learning about apology.

  23. Lee Jay Berman Says:

    From Lorraine Segal via Linked In:

    I think a sincere apology, even if given years later, can have a powerful impact on both the giver and receiver. Some spiritual programs also talk about making living amends. We not only apologize for past harm and make restitution, but change our behavior in the future toward that person and do not repeat the behavior or pattern with others. This kind of work can be deeply transformative for conflict and relationships in general.

  24. Lee Jay Berman Says:

    From Dana Curtis via Linked In:

    In the appropriate case, particularly in adult family/elder matters, I will ask parties to be prepared to discuss their own contributions to the predicament they are in and ask them to consider whether they are willing to apologize for it and, if so, to prepare an authentic, skillful apology. I will often include this conversation fairly early in the mediation, and when I do the parties will usually acknowledge their own part and apologize. This approach not only avoids for the most part the conversations in which the parties are blaming each other, but creates a constructive environment for the parties to talk about the contributions that they each missed. In cases where I recommend this approach, I also send them a copy of Lee Taft’s wonderful article “Apology Subverted: The Commodification of Apology,” 109 Yale Law Journal 1135 (March 2000), to read in preparation. I recommend it to all of you, too, as an extraordinary discussion of apology, its moral dimensions and of the mediator’s role in facilitating it.

  25. Lee Jay Berman Says:

    From Kathleen P. Kettles via Linked In:

    As a follow up to what Lorraine said in regard to spiritual programs, and in my experience with Twelve Step Programs, the 9th Step is, not quite verbatim, “made direct amends except when to do so would injure them or others.” So, the issue there is not necessarily saying I’m sorry, though, of course, that may be a part of the conversation. It’s more about, “how can I make this right.” Whether that involves restitution, or something else. Spiritually, the person making the amend experiences freedom from guilt and remorse as well as paying for past wrongs. It recognizes that one cannot control the response of the other, but one can make good as best as they can to account for the past. The principle behind the step is that one is now free to go forward in life without the detritus of the past. Sometimes, the event is not at all momentous, but just a recognition. Other times, there can be healing even from the recognition alone.

  26. Lee Jay Berman Says:

    From Deborah Denson via Linked In:

    I am smiling. My class paper compared “On Apology” by Lazarus to the 12 step model of “making amends.” My conclusion was that the difference in the models is one of intention…. as Lorraine so eloquently stated, the 12 step intention is freedom from bondage of self and Lazarus sees the intention more outwardly focused on the person harmed. Either way, an apology can be transformative for both parties.

    I love including it in a mediation.

  27. Lee Jay Berman Says:

    From Ana-Elena Fernandez via Linked In:

    An amazing discussion. I am very impressed by all the comments. Personally, through lots of personal experience, I have learned that the simplest way to heal and repair what we break, hurt, damage, etc. is to “apologize” and be sincerely contrite, which brings us to the place of wanting to “fix” the wrong we did…and the only way to get on with your life, if you have been offended, by whatever, is to bring healing through forgiveness. Even the medical community realizes that. So the play is…if you caused the offense then take responsibility and repent and apologize. The response from the offended person needs to be to accept the apology, and forgive and move on. It can’t be more beautiful than that. As humans, we will cause offense and be offended countless times, in the work place, in our social life, and in our family circles. Might as well learn how to deal with it the quickest and cheapest way. Just my humble opinion.

  28. Lee Jay Berman Says:

    From Debra Healy via Linked IN:

    I believe an apology is authentic when it is done without expectations.

    Any expectation on the part of the person apologizing, whether implicit or explicit, whether perceived or not, indicates a strategic or tactical motive.

    An apology is an expression of empathy and understanding – not a strategy or tactic encumbered by the expectations of the apologizer.

    Thank you for a wonderful discussion.

    Debra Healy

  29. Lee Jay Berman Says:

    From Michael Curry via Linked In:

    I think Debra has pointed up an important reason that heartfelt mediation apologies aren’t always received as such — even if intended as such. An apology at mediation is easily seen as “a strategy or tactic.” If the person was sorry, why did they wait until they are asking for something to apologize. I know all of the legal reasons why, but the receiving party usually does not. This is especially true well into the mediation where the aggrieved party has already been drug through the mud. So, an apology can be too late from the standpoint of the injured party. Successful apologies often include an apology for the timing.

  30. Lee Jay Berman Says:

    From Rebecca Bowman via Linked In:

    I agree that linking an apology to expectations is dangerous. A “successful” apology must be without conditions, both “if” and “but” conditions and expectation-conditions. To condition an apology upon acceptance of that apology is as dangerous as thinking that forgiveness can be conditioned upon acceptance of that forgiveness. I also agree with the implied comment that linking an apology to acceptance is strictly a negotiating position (I’ll apologize if you accept my apology) and will generally be seen as such. I also agree that an apology “coerced” by circumstances (and this can be perceived by untimeliness) is not an unconditional apology, either.

    The biggest way to demonstrate the sincerity of an apology is to demonstrate active behavior to change the behavior or to prevent the behavior from recurring.

    One of the most successful apologies I have ever witnessed went something like this: I did X. Of course, I’m sorry that I got caught doing X. However, I am heartily sorry that I did X, both because it hurt you (and others) and because it is not consistent with the person I want to be. It is my plan to do A, B, and C, to make certain that I don’t do X again. I have already done ___ to start on A, done ___ to start on B, and I’m in the middle of doing ___ to find someone who can help me with C. It’s important to me, though, that you be confident that I won’t do X again. Is there anything else that you think I should do or that you want me to do so that you can be confident that I won’t do X again? I will submit to whatever you ask of me so that I can begin to rebuild your trust.

    It was a beautiful thing. The acknowledgment, the affirmative actions already taken, the inquiry, the humility, and the submission were all huge steps down the path of restoration, both for the individual and for the relationship. And, whether business or personal, it’s all about the relationship.

  31. Lee Jay Berman Says:

    From Elissa Feit via Linked In:

    I had several opportunities this week (unfortunately) to test some of the theories on late apologies and apologies in general. It was an interesting week to say the least–I inadvertently said the wrong thing to the wrong person at the wrong time. This was brought to my attention by a well meaning friend. The experiment ensued. Two beautiful apologies, each sincerely delivered. One accepted instantly and graciously (the party who had more of a right to be upset), one rejected with arrogance. The conclusion, the recipient’s personality has as much to do with the success of the apology as the sincerity of the apologizer. Some people like playing the injured party, and will, no matter what. Final observation–I spoke to someone who had hurt me terribly years ago by humiliating me in public due to the fact that they felt I was not driving fast enough! An upstanding member of my community, beloved by all, except me, who saw this volatile side of this man. Today, four years later, when I was informed that he was made President of the synagogue that I belonged to, I approached him, congratulated him, and told him that I wanted to discuss an incident which he probably did not remember, but which left a terrible impression on me. Five minutes later, we buried the past. It serves an example that an apology offered late, even one that was solicited, was worthwhile. This individual had no way of knowing that I harbored these feelings for him (although he should have). In a perfect world he would have acknowledged a memory of the incident. The world is imperfect, and I made the best of it.

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