Posts Tagged ‘Mediation’

As a mediator and leadership coach, I have to say this:  While generally I don’t disagree with most of what Meryl Streep said during her acceptance speech for the Hollywood Foreign Press’s Lifetime Achievement Award at tonight’s Golden Globe awards, she did miss an incredible opportunity.

First, she used her audience, her station, and her status the same way she accuses President-Elect Trump of using his.  Then, by attacking him, all she did was up the ante and unify his supporters (half of our country), while ensuring that Newton’s third law of physics persists:  For every action, there is an equal and opposite reaction.  As long as any of us advocate for one “side” over another, or argue over who/what is right/wrong, and frame it as “us and them”, we simply continue volleying in the same game.  The only way to unify us as a people, and appeal to the vast middle of the bell curve, is instead to catch the ball, stop the game, walk to the middle of the court and have real dialogue, with listening, understanding, and acknowledgement.

If you were cheering her speech, you may be caught up in the game, too.  We call it confirmation bias, where you seek out what you agree with because it feels good.  If you are booing it, maybe you should listen again and hear her words.  The fact that she delivered them in advocacy doesn’t mean that they are wrong; it only means she said them in a way that some couldn’t hear them.  And perhaps with a little too much judgment.

As a mediator, I know that telling people they are wrong doesn’t change their minds.  And as one who regularly mediates with the biggest celebrities in “Hollywood”, I know that even the ballroom before her was divided.  I also know that her talk made it unsafe for any who disagreed to speak up.  That’s why the election polls were so inaccurate.

We should be seeking to make people stop and scratch their heads and think in a new way about things they hadn’t before considered, rather than seeking to make the majority cheer and raise a fist.  As long as both sides persist in the latter, we are trapped in this volley for the unforeseeable future.

I call upon my mediator and leadership colleagues, and on all of you reading this, to help change the game and create dialogue, modeling more inquiry and active listening than advocacy.  It is up to all of us.

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Concussion Discussion?

Author: Lee Jay Berman

Junior Seau Chargers[This blog post was originally written on August 9, 2015]   Something needs to be said about yesterday’s NFL Hall of Fame Induction Ceremony.  There was one very important person missing:  Former All-Everything Linebacker Junior Seau.  He is missing because he took his own life in 2012, between the time he retired after 20 NFL seasons, and the date of his induction into the Hall of Fame.  He took his life by pointing a gun at his heart and putting a bullet through it, allegedly so as to not do damage to his brain, and to leave it to be studied by doctors to assess the impact of repeated concussions from playing the sport.

Seau was one of several to take their own lives in this way, presumably to prove to the NFL and others that they needed to study Chronic Traumatic Encephalopathy (CTE, chronic brain damage that is said to make people feel crazy, like they’ve lost their minds, and also known for leading to severe depression), and because he could no longer live with the symptoms of the disease.  Seau did not leave a note, but the year before Seau’s suicide, Dave Duerson committed suicide in the same fashion and did leave a note requesting that his brain be studied for CTE.  To date, 18 players have been diagnosed with CTE, and 8 more are suspected to have had it.  Currently, 32 living former NFL players have been diagnosed with CTE or ALS, presumed to have come from repeated concussions.  These are names you know, including Brett Farve, Tony Dorsett, and Jim McMahon.

As you know, this space is not one for advocacy of one side or another on an issue, but rather to advocate for the discussions we should be having about difficult issues.  Neither side can stick their heads in the sand on such an important issue, but on this one, both sides did.  Players, ceding for the moment to the macho, jock stereotype, were not the most likely to step forward and admit a medical weakness from playing the game.  And the NFL owners likely looked at this as a risk of potential liability, so they went into denial mode until these suicides began, almost as a trend.

Eventually, the players filed a lawsuit, and there was a 2013 settlement, though it is still in conflict, with players opting out.  What’s wrong with this picture?  Isn’t this how our society works?  One side or both on an issue put their heads into the sand, refusing to acknowledge a problem, forcing the hand of the other to file a lawsuit in order to get the other side’s attention, and after each side has spent unheard of amounts of money fighting in our adversarial system, only then do they begin to have discussions.

What would happen if at the beginning of the problem, the very genesis of it, they brought in a mediator to serve as a neutral party and help them exchange information, discuss options, and look toward solutions and resolutions?  As a mediator, I can say that there is a huge difference in the options available to us early on in a dispute, as opposed to later, after litigation and discovery have entrenched everyone.  In the early stages, we talk about collaborating on a resolution, in the late stages, we talk about accepting a monetary settlement, often from an insurance policy that covers the defendant.

Until insurance companies, corporations, and individuals begin to decide to talk it over in the early stages of a conflict, we are going to keep going down this same path.  And what should be glorious celebrations of sport and victory will continue to be marred by death, sadness, and whispers of what would have been, and how it could have been different.

(more…)

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Your Judgment May be Impairing You

Author: Lee Jay Berman

Judging a Person Does Not Define Who They Are... It Defines Who You Are.Judgment is a tool that actually impairs a mediator. While it’s human nature to judge people as dangerous or not, the notion of good or bad is one that only makes us feel superior in our ability to pass judgment on them. As the quote says, it does nothing for us.

As mediators, listing to people tell their stories, the trained human response is to decide which story we believe, or which seems right, or more credible. The mediator’s job, in contrast to those things is to understand. To understand that the story we’ve just heard is that person’s offering, their truth. And what they need from us is to understand it and to honor it as such. We don’t have to agree with it, or validate it, or ratify it, we simply need to accept it as their truth, and make sure they understand that we have done so.

The challenge to one being a really complete mediator is their ability to hold two separate truths simultaneously. Can you? Can you hear to stories that sound 180 degrees different and hold them both, and still be of value to them in helping them reach an agreement that allows them to put the dispute behind them without scratching the itch of needing to know who is right? Or whose truth is closest to the real truth? If so, then you may be cut out to be a mediator. If not, you may just need more practice at suspending judgment and really, deeply listening to people, while quieting the chatter in your mind that’s busy judging. If you can learn to do that, then you will see the world in a different light. That is the light of the mediator.

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Court closes ADR ProgramI approached SCMA with the idea of doing a Town Hall in 2003 when the mediation community was divided like the red sea over the Rojas v. Superior Court Case.  That case pitted the confidentiality of the mediation process (and the evidence of mold discovered during a mediation, and its eventual remediation) against the needs of the families who had mold spores in their lungs and no way to prove liability, short of breaking the confidentiality of the underlying mediation.  That year, SCMA and CDRC, the two largest mediation groups in California wrote opposing amicus briefs to the State Supreme Court.  As a commercial mediator, I could see both sides of the issue having merit and thought that the best thing for the mediation community to do was to practice what they preach and come together to have a facilitated dialogue about the issue of the extent to which mediation confidentiality should extend.  After leading two years of public hearings on the state Senate Bill regarding mediator credentialing during the mid-90’s, I was very comfortable leading this kind of discussion and thought it would be good for everyone.  Since that time, SCMA has hosted a Town Hall most every summer.

This year, the reported closing of the Los Angeles Superior Court’s ADR program is a huge issue in the legal and ADR world, so a Town Hall style dialogue among mediators and advocates alike is really important.  The LASC mediation program was the largest in the world, and by administering some 25,000 mediations per year, was the envy of most other legal communities.  One of the largest benefits that the program provided, in addition to the obvious docket clearing benefit of a 50% resolution rate, was that it took the pressure off of counsel to risk appearing weak if they suggested mediation to opposing counsel by having the court order cases into the program so that counsel could save face.  One can only wonder how many of the cases that would actually benefit from a good private mediation will have that opportunity, as trial counsel simultaneously need to be zealous advocates for their clients in an adversarial proceeding.  I believe that proposing a mediation – an attempt to settle – is one of the hardest things to do for a trial lawyer. And the more their style leans toward intimidating, the harder it is for them to be congenial or appear open to settlement.

The reason that the local mediation community is divided over this is that at different stages in a mediator’s career, the program can be really helpful, almost a saving grace, or it can be the evil, undermining effect that keeps them from making a living.  You see, the LASC mediation program operated with a collection of some 2,000 trained mediators willing to mediate cases under $50,000 for the court on a volunteer basis for the first three hours.  The problem was that the court never respected the $50,000 cut-off intended by the original deal, which became SB 401, and eventually CCP 1775. As a result, the court deemed it fair game that ALL general civil cases were eligible for “free” mediation (for the first two hours of mediation time in every case, which quickly morphed into 3 hours by the late 1990’s).  This meant that for beginning mediators who were fresh out of training, the court was a great place to go and volunteer and get experience mediating with represented parties.  For intermediate level mediators, it was a great opportunity, and still one worth volunteering for, to raise their number of cases mediated and begin to develop relationships with trial lawyers on both sides of the aisle, as well as institutional parties, like insurance companies and corporate counsel.  But for more advanced mediators, looking to build a practice and pay the mortgage and feed their families, the court program soon became unfair competition, building on the backs of volunteer mediators, and by sending cases over $50,000 into this free program, potentially taking cases that would otherwise go to the private sector into the court’s jurisdiction by offering them free mediation. Today’s Tea Party should have had a fit over this.

As we look at it today, the possibility that this program appears to be going away on June 30, the only certainties we have is that the legal and ADR communities likely won’t have the court’s help in getting parties to the mediation table, and the likelihood of finding volunteer mediators for litigated cases will be little or none.  What we won’t know until this evening at the Town Hall being hosted by the Southern California Mediation Association is how the mediators and the bar will react to these changes.  Undoubtedly, some mediators will applaud them and say it’s about time, where others will mourn them and say that they feel like the mediators who are “in” practice already will have an even greater advantage over those trying to break into the profession.

In the end, I look forward to moderating a civil and productive dialogue will help generate creative ideas for continuing to promote mediation in litigated matters, and that as a community of peacemakers, we will find a way to serve those cases that might otherwise go un-served.  As a room full of mediators, I am certain we will find a way.

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December 20, 2012ACR Logo

The membership of the Association for Conflict Resolution mourns the tragedy in Newtown, Connecticut, along with all those shaken by it across the United States and around the world. We and many of our other colleagues stand ready to lend the full range of our professional expertise and devotion to processes that support healing, as well as those sustained efforts that will be required to facilitate dialogue, build consensus, and take action to address the deep rooted structural issues that contribute to this tragic pattern. Our membership includes thousands of dedicated and seasoned conflict resolution practitioners with a variety of specializations committed to the work that lies ahead.

Many ACR members, particularly those who are mediators, are also following a developing side story relevant to our field. News reports have disclosed some details of the mediated divorce of the perpetrator’s parents and provided comments alleged to have come from the couple’s mediator. ACR would like to make clear to the public that confidentiality is one of the basic principles of mediation, and that any mediator belonging to an organization, such as ACR, which has approved the Model Standards of Conduct for Mediators, is bound by that standard of confidentiality (http://www.acrnet.org/Educator.aspx?id=971). In addition, ACR endorses both the ACR Ethical Principles and the Model Standards of Practice for Family and Divorce Mediators which state “A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.”

Each year in the United States, there are thousands of divorcing couples who choose to work together in mediation to find an outcome that is mutually satisfactory. ACR is committed to seeing that they and all mediation clients can be assured that they are protected from breach of confidentiality except where permitted by law or agreement of the parties.

ACR leadership and members continue to offer whatever support and care we can to the community of Newtown, the surrounding area, and the affected families, for whom we grieve.

Association for Conflict Resolution
12100 Sunset Hills Road, Suite 130, Reston, VA 20190
www.acrnet.org

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sopranosIn Hawaii, a Molokai couple won a $3.9 million verdict against their Homeowners’ Association (HOA) and individual defendants when the Maui jury found that they had been subjected to bullying, threats, harassment and intimidation from their own HOA Board members and others in the complex.  Jim and Nancy Bevill were subjected to what their lawyer, Terry Revere, called a “campaign of intimidation” that spanned over 6 years and went as far as killing pets, vandalizing cars, death threats and constant intimidation at the Ke Nani Kai Condominiums in Maunaloa.  Revere compared the Bevills’ experience to the equivalent of a John Ford western, where an isolated town is run by a villain and his collection of thugs.  More details are here: http://aiminst.com/maui.

A nightmare, to be sure, the case lasted for 4 years – the trial alone spanning 8 weeks – and included an estimated $1.5 million in combined attorneys’ fees, with claims ranging from negligence to federal Racketeer Influenced and Corrupt Organization (RICO) Act violations.  The Bevills’ complaint says that the board members treated the complex like their own “personal fiefdom”, using the resident manager and handyman as the “thugs” to enforce their rule, with the latter having a criminal record and claiming ties to organized crime.

The Bevills, who relocated to Hawaii from California in 2004, were awarded damages including $500,000 in general damages and over $3 million in punitive damages against the HOA Board and Association (generally not covered by insurance), as well as by three individual board members, the former resident manager, and the handyman.

It seems that the trouble all began when the Bevills brought in an independent handyman to complete renovations to their unit, over the objections and pressure of board members, who seemed to trade protection with the handyman. When the Board’s intimidation was unsuccessful, the Bevills soon found themselves at odds with the board, labeled as “troublemakers” and the target of escalated harassment, which included the handyman making lude gestures with his genitalia toward Mrs. Bevill when she was home alone.

Former 2nd Circuit Judge Joel August, who heard some of the case’s early portions, said that the outcome should serve as a strong example of why condo associations should resolve their disputes early and avoid protracted legal action, when possible.  Apparently, Bevill made an offer to settle prior to trial for less than 10% of the eventual verdict, but the offer was rebuffed by the defense.  “This case,” said August, “if nothing else, should be the poster child for the idea that alternative dispute resolution is the way to go.”  He said that resolving this dispute through mediation or even arbitration would have been a “much smarter” choice.

California law has Civil Code Section 919 requiring homeowner certain disputes in associations to be mediated prior to filing any kind of administrative or legal action.  Perhaps if Hawaii had such a law, this situation could have been resolved much earlier and ended much better.

While mediation doesn’t always resolve all of the conflict between people, it does offer those in conflict the opportunity to sit down with a neutral person to facilitate the dialogue and keep it positive and results oriented. For more on mediation, please check out Stories Mediators Tell [http://aiminst.com/stories].

Looking at the Ke Nani Kai HOA conflict, there was an opportunity for the Bevills to request mediation with the offending board members and contractor.  Had mediation occurred early on, especially had it been required under the CC&R’s, things may have been manageable before they got out of control.

Once the lawsuit was filed, August said that both he and another judge tried to assist the parties in settlement discussions, but such attempts were unsuccessful.  This is not surprising, given that the early resolution of conflicts brings the parties together to have discussions before emotions escalate as fully as they did in this conflict.  The later the resolution attempt, the more difficult it is to get parties to see eye to eye and work together toward a resolution. As this case progressed, huge amounts of legal fees were expended, and the entire complex had divided down the middle.  Once a case has become this volatile, attempts at resolution require an extraordinary amount of de-escalation before resolution can be attained.

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Am I the only one who is tired of political rhetoric?  Am I the only one tired of turning on the TV and radio only to hear Rush Limbaugh, Keith Olberman, Bill O’Reilly, Randi Rhodes, Glenn Beck and Rachel Maddow earning big bucks for doing nothing more than repeating sound bites, talking points and arguing extreme perspectives on every issue?  How did we get to the point where political debates were so politically correct that our leaders are afraid to say anything that their base might disagree?  How did “We the people” allow our politicians to become puppets to special interest groups and lobbyists with the largest budgets?

It really is time for a change.  In a time where more mediators are running for office, bringing with them the skills that conflict resolvers use, and where for a recent judge seat in Los Angeles County, four mediators were among those running, I think the change is more one of process than of ideals.  While most will agree that President Obama has certainly been a change from his preceding President Bush, many would also say that policy change has not solved the problems we face.  What is needed instead is process change.  Until we change the way we do leadership, in government, big business and in every organization, whether a massive homeowner’s association or a small non-profit board, we will continue to face the same frustrations, the same failures, the same disenfranchising, and the same power struggles.

John KavanaghKyrsten SinemaThis is why I decided to hold our Immigration Dialogue 2010 at the Skirball Cultural Center in Los Angeles on July 23rd.  Sponsored by the American Institute of Mediation, this will be a discussion of a different kind.  Rather than hosting a debate, where each side slings sound bites and talking points at the other, and the result is that each audience member becomes even more galvanized behind the position they carried with them into the debate hall, we are putting on a facilitated dialogue, essentially a mediation, featuring Arizona Representatives John Kavanagh (R) and Kyrsten Sinema (D).  We will discuss the immigration issues facing our nation, and have some discussion about Arizona’s controversial SB 1070, which is due to become law on July 28 of this year.

These two lawmakers, both intelligent and articulate, along with their constituents, have lived with these issues up close and personally in recent years.  Because of their experiences and their perspectives on the immigration issues we all face today (the fact that there are somewhere between 11 and 12 million illegal immigrants living in this country), we can delve into the underlying interests that they and their constituents hold, that are driving their positions on the solution.

In hosting this event, the American Institute of Mediation is hoping to commence a change in the way we all talk about the critical issues that face our society, and to become more collaborative and a little less competitive; to listen more and argue less; and to explain, describe and attempt to understand, rather than simply repeating sound bites and talking points.

We will attempt to find the underlying interests that they have in common, and build from there because we believe that solutions that are derived from people’s interests are generally strong and long lasting, and we hope to demonstrate this by moving this discussion in that direction using the same skills that mediators use on a daily basis.

If a mere 120-minute dialogue about immigration among stakeholder representatives could curtail protests, boycotts and protracted litigation, wouldn’t you welcome the opportunity to watch such a conversation live and in person?  We expect to fill a 300-seat neutral venue in Los Angeles with members of the public, government, law enforcement and of course the media who would witness how parties interested in the controversial immigration question might come together to have a facilitated dialogue from which every state, not just Arizona, could benefit.

We will do all that we are able to provide a safe, protest-free venue, a respectful audience, media coverage and the opportunity for our guests to speak about their issues freely and fully.

I am donating my time and resources to this project because in my 16-year career as a mediator, I have never encountered a conflict that could not benefit from a structured mediative approach when the parties so need to have their interests understood.  I believe the immigration dilemma has been minimized to sound-bites and protests and is no exception to this rule. Our guests, as thought leaders on this topic deserve to be better heard and understood by those who disagree with them, and we are able to provide that forum.

We invite you to join us for this AIM Institute Special Event. Only 200 tickets will be sold, so register now before it sells out. Advance registration is required, and parking is free.  Video highlights will be available online at the AIM Institute site following the event.

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Larry King + Shawn Southwick E! entertainmentOne of this week’s most talked about legal issues is whether or not Larry King will divorce his wife Shaun Southwick.  See “Larry King Divorce ‘Full Steam Ahead”.  Last week the media speculated about the state of Tiger and Elin Woods’ marriage.  The week before it was all about Sandra Bullock and Jesse James, and the week before that Charlie Sheen and Brooke Mueller.  Next week another couple with a marriage in crisis will take the spotlight amid accusations of cheating, disclosures of prenuptial agreements, divisions of millions in assets and child-custody battles.  Like many failed marriages, however, when the focus goes away the discussion about those matters will remain toxic.

Every day, famous and unknown families are torn apart by divorce.  Here’s a story that didn’t make headlines.  While it did not have a happy ending, the couple involved are still speaking to each other and making joint decisions about their children’s care.

He was a professor, she was a surgery nurse, and their girls were three and five.  Just like most folks in their forties, they had a house, individual retirement accounts, some stocks, some love and some anger.

This couple chose co-mediation, where they met with a pair of mediators:  she was a family law attorney and he was trained in psychology.  After the mediators facilitated rational conversation and give-and-take, the couple agreed on everything from dividing their belongings and support issues to a collaborative parenting plan for the girls.  They spent less than $2000 for the entire process, and more importantly, they remain civil and friendly to each other.  And they decided the outcome.  They retained control of their own lives.

Some people still choose to get divorced the old-fashioned way – where they let their emotions overtake their logic.  They fight over everything, including things they don’t even care about.  All they really care about is hurting the other one as the conflict escalates.  This method requires lawyers and judges.  One such young couple had $30,000 in community property and no kids.  When they finished fighting, her legal bill alone was $40,000.

Couples with children who choose to fight do damage in another way, too.  Their kids are watching and learning how to engage in conflict from their parents’ example.  These kids will grow up thinking it’s normal to have parents who don’t have the skills to get along and who have to be carefully seated separately at graduations and weddings (stealing the spotlight at their kids’ events).

Some may say that a couple’s approach to divorcing depends on whether it ends by mutual agreement or by deceit and betrayal.  I submit that it’s the other way around – that the way they approach divorce depends on their choice of process.  Maybe like other contracts, there should be a marriage contract with a pre-dispute mediation clause in it, meaning, “We love each other now, let’s agree now that if anything ever goes wrong, we’ll use mediation to sort it out civilly.”

It’s a mediator’s job to keep a divorcing couple on the civil path, where it’s a lawyer’s job to advocate for their client’s interest above all others.   The only thing divorcing couples have to do – celebrities or not – is make the choice to go the more civil path, and then let their mediator help them keep it there.  They should make this decision for themselves and for their children.

Nobody knows how many celebrities use mediation to divorce, mostly because mediation is confidential, but judging by the magazine covers in the supermarket, far too few consider it.  Maybe it’s because the financial cost of the divorce isn’t as daunting to them.  Maybe it’s because they have an ulterior motive for having their names on the front pages for an entire week.  Most of the couples in the news lately, however, have small children who are going to have to live for years with the consequences of their parents’ decisions about their break-ups.  I hope at least one of them reads this post and looks into mediation.  As you read this, you may know a couple who is in need of this advice.  It could save them a lifetime’s worth of regret.

What do you think about the viability of a prenuptial mediation agreement?

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ABC.com file photo of facebook front pageLane New, a 16-year-old Arkansas boy, convinced a local prosecutor to file misdemeanor harassment charges against his mother Denise for allegedly changing his Facebook password without his permission and posting personal information about him on his Facebook page.  Denise explained that she was exercising her parental rights because some of her son’s posting reflected what she believed was reckless behavior, including driving 95 miles-per-hour one night after a fight with a girl.  Denise is going to court on May 12.  See:  “Arkansas Teen Accuses Mom of Facebook Harassment

As always, there is a story behind this conflict, although the facts are few.  Denise went through a divorce five years ago and after she wrestled with mental health problems, Lane moved in with is grandmother with Denise declaring that she could not adequately supervise him at the time.

After reading and being shocked by her son’s Facebook posts, Denise evidently decided to take strong measures by locking him out and impersonating him, including posting some things of her own and conversing with his friends.

Clearly this is a mother and son who suffer from a difficult relationship and little, if any, ability to communicate.  But there were many choices available to Denise.  When faced with choices, we have an opportunity to pause and consider, not just the short term relief we may feel by venting our own frustration, but the long term effects of our actions in this moment.  Upon discovering the disturbing posts, Denise had time to consider her actions.  Unfortunately, instead of pausing to allow herself a moment to think strategically, it looks like she reacted emotionally and probably drove a wedge between her son and her that will be very difficult to heal.

In this conflict, Mom’s real interest seems to be the safe care and protection of her son.  Her son seems concerned about his privacy, independence, and the respect he wants to be afforded as a young adult.  Mediation would help them address these issues, matters the criminal court would consider irrelevant.  And it would result in an agreement born from their better understanding each other and from their realization that the others’ motives aren’t as evil as they first feared.

Ironically, Facebook’s slogan, “Facebook helps you connect and share with the people in your life” in this case was the opposite.  Lane and his mother turned to facebook precisely because they were unable to connect and share with each other.  While I believe that Facebook and other social media outlets have many advantages and are excellent communication tools, they are, unfortunately, a poor conflict-resolution forum.

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“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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