1E Handout

UNDERSTANDING APOLOGY: MECHANISMS FOR REPAIRING RELATIONSHIPS

June 27 30, 2010

Aaron Lazare, M.D. Professor of Psychiatry

Celia and Isaac Haidak Professor of Medical Education Chancellor and Dean Emeritus

University of Massachusetts Medical School Worcester, MA

The offering and accepting of apologies is one of the most profound human interactions. For the offended party, an apology can heal a humiliation and a grudge, remove the desire for vengeance that can grip the mind with persistence and tenacity, and generate forgiveness. For the offender, an apology can relieve guilt and shame and diminish the fear of retaliation. The result of the apology process, ideally, is the reconciliation and restoration of broken relationships but not without risk.

Definition and Semantics of Apology

An apology is an acknowledgement of responsibility for a wrongdoing (or an offense) followed by expressions of remorse, forbearance, and reparation (when appropriate). Two parties are involved, one who commits the offense and the other who is the offended party. The two parties may consist of two individuals, one individual and another larger body (such as a business, an institution, or a nation), or two large bodies. Within heterogeneous bodies, several agendas may be involved. The essence of this definition of apology dates back to the 17th century.

The wrongdoing or offense in medical practice refers to an untoward treatment outcome that should have been avoided according to ordinary or community medical standards.

An Earlier and Continuing Definition of Apology

An earlier definition of apology, still in use, derives from the Greek word apologia meaning justification, excuse, or explanation. The United States Presidents press secretary, for example, often functions as an apologist, a person who explains and justifies the Presidents speeches and writings. This is an entirely different meaning from the more common definition of apology as an admission of wrongdoing, regret and repair.

Does I am sorry constitute an apology?

I am sorry may be a compassionate expression which someone may verbalize in response to hearing anothers bad news such as sickness or a death in the family. In this sense, it is not an apology because there is not any wrongdoing. I am sorry is an apology when the offense is explicit such as I am sorry for not inviting you to the celebration or clearly implied as when someone bumps into another and says I am sorry.

The National Association of College and University Attorneys 1

Is I Apologize always an apology?

The two words I apologize offered following an offense, absent a clear acknowledgement of the offense, an explanation, or remorse, does not meet the definition of an apology.

I apologize is inappropriately used when there is an understandable inconvenience but no offense. An example is a sign at a construction site we apologize for the inconvenience or a sign at a parking garage we apologize - the lot is filled. In both situations, there is no offense. The word regret would be more appropriate.

What does it mean to demand an apology?

The expression I demand an apology is commonly used to humiliate the other party and put him/her on the defensive, not to heal an offense.

The casual sorry, excuse me, or pardon me.

These casual expressions are common responses to minor offenses such as inadvertently blocking anothers way, bumping into anothers shopping cart, or inadvertently cutting in front of someone in line. These expressions are meant to convey that there was no purposeful or aggressive intent. Absent these apologetic expressions, the recipient interprets the block, the bump or being cut off as an offense, a deliberate insensitive action.

Are There Non-Verbal Apologies?

Physical gestures can be understood as non-verbal apologies. Examples include German Chancellor Willie Brandts kneeling at the Warsaw Ghetto Memorial, and Pope John Paul 23rd praying at the Western Wall in Jerusalem.

The History of Apologies

Apologies can be traced to preliterate humans who apologized not only person to person and tribe to tribe, but human to animal.

One of several apologies in classical Greek literature (the Iliad, 600 BCE) involves Agamemnon, a military general, who apologized to his subordinate, Achilles, in hopes that the latter would relinquish a grudge and resume his role as military leader. The apology failed. Achilles refused to fight.

Apology is a key part of repentance in the five great world religions: Hinduism, Buddhism, Judaism, Christianity, and Islam. (The Talmud says that G-d created 7 things before creating the universe. One of the seven was repentance.) In the three Abrahamic religions, the word for repentance, translated into English, is turning away from sin and turning to G-d.

Apology has long been a part of legal systems. It is generally thought that a defendant accepting responsibility and expressing remorse for criminal actions can be a mitigating factor in sentencing.

Primates have been observed to make non-verbal apologies following aggressive behaviors.


A Measurement of the Increasing Frequency of Apologies

It can be shown, measuring the use of the word apology in newspapers, that the frequency of apologies in the United States has rapidly increased beginning in the early 1980s.

Number of Apology ArticlesWashington Post & New York Times

1900-2010 (five year intervals)

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1910

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The Growing Importance of Apologies

There are several explanations for the growing interest in apologies:

An increase in world population (2 billion in 1950 to nearly 7 billion in 2010). The end of World War II and the Cold War Empowerment of previously disenfranchised populations: e.g., Native Americans,

African Americans, women, LGBT, Aborigines, Japanese Americans Influence of Pope John XXIII and Pope Paul II The Millennium and the Jubilee Year The world as a global village: satellite, internet, cable TV, cell phone, e-mail,

international finance, climate change

Current Interest in the Apology Process The following groups and organizations have demonstrated an emerging interest in apology during the past decade:

Business and Law Schools, Legal organizations Medical Schools, Nursing Schools, Hospitals Colleges and Universities (departments of social psychology, sociology, ethics, religion,

gerontology)


Houses of Worship Hindu, Buddhist, Jewish, Islam, Unitarian, Christian (Roman Catholic, Greek Orthodox, Protestant)

Mediators: (lawyers, couples therapists, social workers, international peace organizations)

Psychotherapists Substance Abuse/Addiction treatment professionals (12 step programs) Retirees Assisted Living Groups Hospice Care Organizations Industry Law Enforcement Agencies (Attorney Generals Office, Police Academy) Media: Psychology Today, Talk of the Nation, ESPN, BBC, CBS, Washington Post, the

Forward, Commonweal Magazine, On Faith, Oprah and other.

The History of Apologizing in Medical Practice

It has been common practice in medicine not to apologize for committing mistakes. The recent importance of apologies in medical practice has been stimulated by the Institute of Medicines 1999 publication of To Err is Human and JCAHOs 2001 requirement that hospitals inform patients of medical errors. It is widely believed at this time that apologizing to patients is not only humane but diminishes malpractice suits.

How Apologies Heal: The Needs of the Offended Party

Despite the increasing frequency of public and private apologies and a growing body of literature on the application of apologies, there is a paucity of literature on the apology process itself, particularly the psychological needs of the offended party and how an effective apology meets these needs. I propose a more comprehensive analysis of the psychological needs of offended parties, an analysis which has common sense appeal, is applied intuitively by effective interviewers, and can be validated by quantitative studies of offended parties who want or have received apologies. I name the traditional perspective of the apology process The Healing Mechanisms of the Apology and add two additional perspectives on the needs of offended parties that are crucial to the success of the apology: The Goals and The Framework(s). Failure in any one of these three domains can render the apology ineffective or even counterproductive.

Healing Mechanisms of the Apology

Five items which fall under the category of content have been traditionally regarded as the core of the apology process:

The offender must acknowledge or validate the offense with a clear description of the harm done including the nature of suffering of the offended party, an acknowledgment


that the offended party was not at fault, and an acknowledgment between the two parties of shared values, what is right and wrong. The issues of fault and values when implicit and obvious to both parties may not need discussion.

The offender must explain why the offense occurred. The offender must offer an expression of remorse, that he/she deeply regrets what has

happened. The offender pledges the offense will not recur. The offender and/or institution must offer reparation for damages, be it verbal, financial

or otherwise.

Goals of the Apology There are five interrelated goals or outcomes of the apology process:

A desire for dignity and power to be restored in contrast to being disrespected, humiliated or disempowered. The offended party may experience humiliation or disrespect when they believe the offender is withholding important information, lies to them, speaks in a condescending manner, fails to listen attentively, seems in a hurry to leave, or avoids meeting with them. Offended parties report feeling respected, and their dignity restored, by the demeanor of the offender, and feeling empowered when their misfortune leads to positive changes in procedures.

Wanting to feel cared for, that they are more than a problem that needs to be solved. A desire to to forgive the offender in the sense of letting go of the hostile feelings and

ruminations that consume their everyday thinking. Following an untoward incident, the offended party wants an apology which they

perceive as sincere and genuine, that the offender can be trusted to make things right. A desire to feel that the offender is empathic, that he or she understands how the offended

party feels. The above five goals are not commonly thought of as integral to the apology process because they are the intangibles of all human interactions. Without such goals being achieved, however, apologies are likely to fail.

Framework(s) of the Apology Framework(s) describes who is present for the apology discussion, where the apology takes place, when the apology takes place, and the rules of emotional interaction.

Determine who should be present for the apology discussion. The offended party and the offender, or their representatives, are the principals. Depending on the situation and institutional policies, an administrator or other personnel may need to be present.


Setting of the discussion. A setting that affords privacy, comfortable amenities, and adequate time is preferable. Cell phones and other devices should be turned off; distractions and interruptions avoided.

Timing of the apology. Formal and complete apologies should be withheld until the

presence of and the nature of the offense or mistake is clear. A generally overlooked but important aspect of timing is the suggestion by the offender for him/her to return for one or more meetings with the offended party to listen to concerns that have not previously been verbalized. This is recommended on the premise that following a traumatic event which warrants an apology, the offended party, hours or days after the initial discussion, will likely become aware of previously overlooked issues they now wish to discuss.

Importance of the offended party having the opportunity for catharsis, verbalizing their

feelings about the event and the offender. Absent such expressions of feelings, the offended party will feel the communication is unsatisfactory and incomplete.

The importance of a dialogue. Often, the offender speaks rapidly, in a monologue, and

avoids interruption. The offended party will be dissatisfied if unable to speak and observe the offenders response. The offended party will have concerns, worries, questions, and feelings that, if unexpressed, can mask their distress and deprive the offender of an understanding of the offended partys needs. A dialogue allows the offender and the offended party to react to and develop a relationship with each other.

An Integration of Healing Forces The above compendium of healing forces in apologies may seem mechanical or unnecessarily cumbersome. They are, in fact, rarely applied in totality in any given apology. In practice, each apology has its own unique healing requirements for effectiveness. It is the skill of the person offering the apology, by listening and observing, to successfully recognize and address the cognitive and emotional needs of the offended party. In delivering an apology, a failure in any one of the three , by itself, can be enough to undermine the effectiveness of the apology, for example:

If the offended party does not feel the offender is being genuine, sincere, caring, and respectful, it will be very difficult for the other healing mechanisms to overcome the ill will that is generated.

Of the healing mechanism issues in the apology process, the offender should be most

concerned with properly acknowledging and taking responsibility for the offense. Often, an offender is so uneasy about admitting an offense (a mistake) that he/she offers a half-hearted acknowledgement and conditional statement such as if I caused any trouble, or delivers in the passive voice: mistakes were made; or offers I am sorry without acknowledging responsibility.


Failure of any one of the framework issues, the timing, the principals, the setting, or the

catharsis/dialogue could compromise the effectiveness of the apology. The discussion will not be productive and the goals of the apology will not be met.

Learning to Apologize A metaphor for learning to offer an effective apology is learning to play a musical instrument, such as the piano. We can learn to identify the notes on the keyboard and read music, and we can practice various exercises. This is only the beginning. Motor skills, rhythm, interpretation, and numerous intangibles, some learned and others inherited, are necessary to become a fine musician. In learning to offer effective apologies, we can be trained to address the goals, framework and content of the apology, all the time recognizing that each apology will be unique. An effective training model would give us the opportunity to understand, practice and master each individual skill. Just as music students hone their skills by practicing scales and other exercises, so it is hoped we will be able to apologize effectively by understanding the three sets of healing mechanisms and acquiring experience by training and practice. This analysis provides a guide for educating and training for delivering effective apologies.

Table One: A Comprehensive Outline to Healing Mechanisms in Apologies

Goals

Restoring dignity/power Feeling cared for Experience of empathy Restoring sincerity/trust Ability to forgive

Framework(s)

Principals Setting Timing Catharsis Dialogue

Healing Mechanisms

Acknowledgment

(Validation, fault, suffering, shared values)

Remorse Explanation Reparation Pledge for future

Motives to Apologize

Empathic Apologies Diminish personal shame Diminish personal guilt

Strategic Apologies Avoid punishment Placate other party


Resistance to Apologizing

Shame over admitting fault Negative reactions of the other party Fear of reparation including legal vulnerability Some people do not know how to apologize Apologizing gives someone the god-like power to forgive you She might never want to see me again. My professor might publicly humiliate me in front of the class. It makes me feel weak to apologize. I might show hidden inner emotions like sadness or anger and start to cry. I might then be

perceived as weak. When you apologize, you let your guard down and you are like a soldier going into battle

without armor or a gun.

The Timing of Apologies

Apologies Offered Too Soon

The offended party might not understand the nature of the impact of the offense Apologies Delayed

A new awareness of the apology process A growing sense of unbearable guilt Advice of AA or religious organization New perspective on life: aging, illness Public exposure of the offense Creating self-serving opportunities Emerging ethical ideals Offense is discovered Delayed reaction by the offended party

Public vs. Private Apologies

Sincerity less important Less spontaneous Details for the record Difficulty determining precisely the offender and the offended The offense may have been caused by a predecessor (genocide, slavery)

The Role of Apologies in Mediation

In conflict and/or mediation over tangible issues involving money, real estate, etc. it is worth considering whether the fundamental issue is shame, embarrassment, and/or humiliation. Words


in every day conversation indicating these emotions include: hurt (feelings), taken aback, offended, disrespected, treated insensitively, treated without dignity, betrayed, wounded, violated, humiliated, unappreciated. The presence of these emotions should alert the mediator or one of the adversaries that an apology properly delivered may be the most effective action needed to resolve the conflict. Sometime an independent party, not the adversarial pair, will be needed to resolve the conflict by offering the apology or advising one of the adversaries to apologize.

The Implications of Apology

Apologies are important but commonly overlooked healing forces between individuals, groups and nations. The frequency and importance of apology in national and international affairs has increased exponentially since 1980 (see graph). There is good reason to believe that apologies between individuals parallel those that make the news headlines. The majority of the literature, books and journal articles on the subject have appeared during the past decade. Unfortunately, most apologies, at least those that are public, are counterfeit; that is, they try to gain something of value from something that is falsely constructed and cheap. There is a great deal to be gained, both morally and substantively, by making genuine apologies.

Conclusions

An apology is an act of honesty An apology is an act of generosity An apology is an act of humility An apology is an act of commitment An apology is an act of courage



References Lazare A: On Apology. New York: Oxford University Press, 2004. Lazare A: Apology in Medical Practice: An Emerging Clinical Skill. JAMA, Vol. 296, No. 11, 1401-1404, September 20, 2006. Lazare, A. You Call That an Apology? The Washington Post, Sunday, July 3, 2005. http://www.washingtonpost.com/wp-dyn/content/article/2005/07/02/AR2005070200060.html Lazare, A. What Imus Should Have Said, and Why. On Faith Guest Voice, The Washington Post, April 17, 2007. http://newsweek.washingtonpost.com/onfaith/guestvoices/2007/04/what_imus_should_have_said_and.html Lazare, A. Apology as a Moral Imperative. On Faith Guest Voice, The Washington Post, September 21, 2007. http://newsweek.washingtonpost.com/onfaith/guestvoices/2007/09/apology_as_a_moral_imperative.html

Lazare, A. How Apologies Heal. On Faith Guest Voice, The Washington Post, November 16, 2007. http://newsweek.washingtonpost.com/onfaith/guestvoices/2007/11/how_apologies_heal.html Lazare A: The Healing Forces of Apology in Medical Practice and Beyond. DePaul Law Review 2008, Vol. 57, No. 2, 251-265. Lazare, A. Analyzing the Popes Apologies. On Faith Guest Voice, The Washington Post, April 14, 2009. http://newsweek.washingtonpost.com/onfaith/guestvoices/2009/04/analyzing_the_popes_apologies.html

Lazare, A. An Ineffective and Insincere Apology From Tiger Woods, The Washington Post, February 21, 2010. http://newsweek.washingtonpost.com/onfaith/guestvoices/2010/02/an_ineffective_and_insincere_apology_from_tiger_woods.html

Lazare A: The Apology Dynamic. AAOS Now, Volume 4, Number 5, 2010

INSTITUTIONAL APOLOGIES: WHEN, WHY, AND HOW TO APOLOGIZE TO THE AGGRIEVED, THE CAMPUS, AND THE PUBLIC

June 27 - 30, 2010

Miles J. Postema

Vice President and General Counsel Ferris State University

I. INCREASE IN PUBLIC APOLOGIES. There can be little dispute that institutional apologies have become more prominent since the 1990s; and, many are made publicly. Much of the literature concerns medical errors or mistakes, but increasingly public apologies involve other matters as well, including: professional athletes, celebrities, corporations, and other businesses.

Universities are not immune from making mistakes and because of the nature of university and college campuses mistakes are bound to occur on a relatively regular basis. Universities are large and complex entities performing numerous functions on and off-campus and generally include many acres of real estate, residential housing, large dining operations, recreational facilities including recreation centers, golf courses, swimming pools, and other facilities. University and colleges often have extensive auxiliary enterprises, including: hotels, conference centers, restaurants, and coffee shops. Many campuses have their own deputized police force or public safety offices. In short, colleges and universities are extraordinarily complex entities. The following is a short list of incidents or mistakes made on university campuses:

A. University apologizes for planning of Kyi-Yo celebration.

http://news.umt.edu/2010/04/042010powo.aspx B. University apologizes for offensive cartoon.

http://wsbt.com/news/local/81818137.html C. University apologizes for banning girl with Downs Syndrom from barbecue.

http://www.thisisnorthdevon.com.uk/news/Petroc-apologises-barbecue-ban/article-1568465

D. University apologizes for fan behavior. http://statejournal.com/story.cfm?storyid=74693&func=viewstory

E. Washington University issues expression of regret for faculty e-mail. http://mednews.wustl.edu/web/page/normal/8195.html, http://crossman.motime.com/post/617479/Not+all+doctors+approve+of+Amendment+2

F. President Summers apologizes for comments at conference on women and science. http://www.president.harvard.edu/speeches/summers_2005/womensci.php.

G. Duke President shares lessons learned and regrets about lacrosse case. http://www.dukenews.duke.edu/2007/09/rhb_lawconf.html.


H. Brandeis President apologizes for universitys handling of museum issue. http://www.boston.com/ae/theater_arts/exhibitionist/2009/02/brandeis_presid.html.

I. Bethel President apologizes for skit where student used black paint on his face. http://www.bethel.edu/news-events/news/2010/may/mr-bu-statement.

J. Florida State president apologizes for remarks regarding smaller schools. http://www.wctv.tv/home/headlines/41530202.html. (PDF of letter attached to article.)

K. Cornell apologizes for theft of computer containing personal data. http://www.pressoffice.cornell.edu/pressoffice/statement.cfm?customel_dataPageID_19799=25499.

L. University demolishes the wrong house. http://conflictzen.com/how-to-screw-up-an-apology/,(http://chronicle.com/article/Missing-One-House/35398/

M. Board member apologizes and resigns over inappropriate remark. http://blogs.riverfronttimes.com/dailyrft/2010/02/in_missourah_fag_is_off_the_record_missouri_southern_state_university_commissioner_resigns.php

N. University apologizes for theft of patient records from vehicle. http://www.ksl.com/?nid=148&sid=3503000

O. University apologizes to janitor criticized for reading book on Ku Klux Klan. http://www.thefire.org/article/9518.html

P. University apologizes for admissions communications sent in error. New York University. http://nyunews.com/2009/04/02/20/. University of California-San Diego. http://ucsdnews.ucsd.edu/newsrel/general/04-09Letter.asp. Cornell University. http://www.news.cornell.edu/releases/Feb03/AdmissionsStmt.html. George Washington University. http://www.washingtonpost.com/wp-dyn/content/article/2010/02/17/AR2010021704264.html.

II. WHAT IS AN APOLOGY? Commentators list a number of steps or components to an effective apology. Some list as few as two steps and others as many as eleven steps.1 The number of steps varies but most commentators agree that an effective apology should include the following steps2:

A. Recognition. Recognition involves the acknowledgement that an offense has been committed. Missing this step may suggest that the person offering the apology does not understand he has committed an offense.

B. Responsibility. Ultimately, to make an effective apology the institution must take responsibility for its role. No matter who is at fault or who is to blame someone must step forward on behalf of the university and say Im sorry. Apologizing means taking ownership. It is best if the apology does not blame others or make excuses.

1 See AARON LAZARE, ON APOLOGY (2004) (listing four steps in the apology process: (1) acknowledgement of the offense; (2) the explanation; (3) attitudes and behaviors expressing remorse, shame, humility, and sincerity; and (4) reparations) and NICK SMITH, I WAS WRONG: THE MEANINGS OF APOLOGIES (2008) (listing 11 steps). 2John Kador expresses these as the five dimensions of apology. JOHN KADOR, EFFECTIVE APOLOGY, 47 (2009).


C. Remorse or regret. An expression of remorse evidences the offenders contrition.

Most people look to verbal or nonverbal cues because it is difficult to determine when a person is remorseful. Ultimately, an expression of remorse will include the statements Im sorry or I apologize. The statement Im sorry does not always evidence an apology but can be an expression of empathy (Im sorry for your loss.).

D. Restitution. Restitution or remedy is the attempt to restore the relationship to what it was before the offense. The offer of restitution is often the best demonstration of the offenders desire to restore or maintain the relationship. Restitution answers the question of what is being done to correct the problem.

E. Repetition. Repetition is the promise to the offended party that the offender will not repeat the mistake or the offense. Generally, the person making the apology must demonstrate that the offense has resulted in a change. What is the offender doing to ensure that the event or mistake does not happen again?

In order to be effective, every apology or expression of empathy must be sincere. An insincere apology or expression of empathy will likely only make matters worse. The wrong apology is apt to backfire on the apologizer. We have all witnessed apologies that are half-hearted or are not apologies at all. Despite our best efforts to avoid mistakes, an apology presents the university an opportunity to connect with the injured party and demonstrate responsibility and integrity. The negative consequences of an error or mistake can be lessened if they are followed up with a sincere apology that accepts institutional or individual responsibility and keeps the aggrieved partys feelings at the forefront.

III. WHEN IS AN APOLOGY AN EXPRESSION OF EMPATHY? An apology can be distinguished from other forms of expression in that it acknowledges responsibility for the conduct causing the harm. An expression of empathy or sympathy is not an admission of responsibility. A university can, and often does, make an expression of empathy or sympathy even when or where the university has not made an mistake or wrong. Tragedies are bound to occur on campus because of the all encompassing and complex nature of a college campus. Often these tragedies occur through no fault of the university. It is common for a university representative to offer an expression of empathy on behalf of the university and the university community.

IV. LEGISLATION REGARDING APOLOGIES. Over the last 10 years, some 35 states have enacted statutes that offer some protection to the expression of an apology. Some of the statutes pertain to civil litigation generally and others apply specifically to medical errors. The statutes vary from state to state but generally encourage health care providers to express empathy for the patients situation. Some of these statutes


protect true apologies and others only protect expressions of empathy (Im sorry you were hurt). Such statutes recognize while these losses involve a monetary or economic component there is also a sense of anger or sense of loss and an economic award alone will not bring closure to the patient or the patients family. In the health care field, a number of institutions have institutionalized their approach to admitting mistakes and apologizing for them.3 The University of Michigan of Michigan Health System4 and Veterans Affairs Medical Center in Lexington, Kentucky both have established a practice of admitting mistakes and making apologies in the event of medical malpractice. Both have reported that this practice has reduced the number of lawsuits and the costs of settling medical malpractice cases after having adopted this philosophy or policy. An Im sorry policy or practice need not preclude an assertive defense philosophy where you conclude that there has been no fault or negligence. Institutions adopting an Im sorry program following a bad outcome (unexpected death, surgery or treatment does not produce expected results) generally perform an analysis to determine whether the standard of care was met. Initially, the hospital apologizes for the event but does not accept or spread blame. The hospital promises a thorough investigation and pledges to keep the family in the loop. While the standard of care analysis is being performed the health care provider stays in close contact with the patient or the patients family. If the analysis concludes that the standard of care was not met and there were errors or negligence the health care provider will set a meeting with the patient, his or her family, and their attorney. The health care provider will apologize and admit fault. The health care provider will explain what happened and fix it. The health care provider will also offer compensation for the injury. The Im Sorry program has three main principals: (1) compensate quickly and fairly when negligent health care causes injury; (2) defend appropriate care cases vigorously; (3) reduce injuries in the future by learning from mistakes. V. MECHANICS OF THE APOLOGY. A. Timing of the apology. The timing of an apology can be important. Generally, unless the injured party is not ready to accept the apology, the best time to offer an apology is immediately after the event or soon after. The timing of the apology should consider the injured partys needs first. An early apology may help avoid the filing of a lawsuit, reduce legal expenses and attendant time. An early apology might also reduce the number of issues and mitigate damages. A late or delayed apology or the

3 Kevin Sack, Doctors Say Im Sorry Before See You in Court, N.Y. TIMES, May 18, 2008, available at http://www.nytimes.com/2008/05/18/us/18apology.html?_r=1. 4 David Mittleman, "I'm Sorry" Policy Works for University of Michigan Health System, INJURY BOARD, July 22, 2009, http://lansing.injuryboard.com/medical-malpractice/im-sorry-policy-works-for-university-of-michigan-health-system.aspx?googleid=267556. According to Richard Boothman, the chief risk officer for the health system with approximately 18,000 employees , malpractice claims against the system decreased from 121 in 2001 to 106 in 2006 and 83 in 2007. The average time to process a claim decreased from approximately 20 months to approximately eight months. He also reported that costs per claim were reduced by about half and insurance reserves decreased by two-thirds.


absence of an apology may ultimately increase the chances of litigation or lengthen the litigation. It may also increase legal expenses and the likelihood of damages. However, it is not always clear at the outset that a mistake has been made or that an apology is owed. Sometimes an apology might be delayed because it takes time before one understands an offense has been committed or understands the gravity of the offense. In some cases, this understanding may be triggered by a review or an investigation of the facts and circumstances. An apology can be made at many different points but probably has its greatest impact when made immediately. However, an apology can be offered at any point, including, in mediation and in settlement discussions. In short, an apology should be made as soon as practically possible assuming the person harmed is in a position to hear it. B. Who should make the apology? For institutional mistakes an apology should be made by a fairly high ranking official of the university. The president or chancellor may be the appropriate person to apologize on behalf of the university. In other cases involving smaller incidents or mistakes the person making the mistake may be the appropriate person to make the apology. An apology is likely to be better received when it comes from a senior or upper level managers. C. What medium should be used to apologize? Apologies can be made in person, by telephone, or by letter. An apology can be made by e-mail, but this is likely the least preferred method of delivering an apology. E-mail, however, may be the best way to apologize quickly to a large number of people. In the instance of a computer security breach a university might issue an apology by e-mail to be followed with a letter. If possible an apology should be made face-to-face at a time and place determined by the injured party. Face-to-face apologies may have the most powerful transformational qualities. Delivering the apology in person indicates the offender is serious about the apology. It is not always possible to apologize person to person for a variety of reasons. In some cases, particularly with a university, there may be multiple injured parties spread over a large geographic area.

D. Apology in mediation. We have all heard plaintiffs say that this is not about the money or that they are only filing a lawsuit to ensure that what happened to them does not happen to others. Many of us have been involved in situations where the injured party desires an apology from the other party. A heartfelt apology or an expression of empathy in mediation can diffuse and lower the anger of a plaintiff. The mediation process may prove to the best opportunity to offer an apology if one was not offered early on.


Depending upon your jurisdiction probably less than five to ten percent of all lawsuits filed result in a trial. Most lawsuits are settled or dismissed on motions for summary judgment. Many cases that are settled before trial are settled during the mediation process. Many states court rules provide that statements made in mediation are not admissible in litigation. Accordingly, defendants and their attorneys may feel safer making an apology in the course of mediation. Mediation often provides a place where the parties can participate in the settlement discussions and negotiations while being assisted by the mediator and with the advice of their attorney. A skilled mediator may be able to create an opportunity for a discussion that might include an apology. Often, we believe litigation is only about the money, but a significant issue in litigation is the anger, non-economic issues and other emotional issues. Mediation can be successful when parties can have a discussion in a setting outside the normal litigation routine. Often this can be a discussion that does not regularly occur in litigation. Mediation provides a relatively safe environment to offer an apology although the mediation itself may be a relatively long time after the incident giving rise to the apology. An apology (or expression of empathy) can be useful in mediation. For a defendant to say that they are sorry this happened may help with the non-economic needs of the plaintiff. Mediation can provide a relatively safe avenue for a defendant to express an apology or expression of empathy (and for the other party to forgive).

E. Why not apologize? Making an apology entails some risk. Some may believe that when errors or mistakes are made that disclosing the truth encourages litigation. Commentators have written much about the transformational power of apologies. Perhaps one of the greatest reasons that people do not apologize is the fear of how the person receiving the apology will react. The stakes become even greater in an incident involving potential litigation and so it should come as no surprise that many attorneys and insurance adjustors advise against the giving of an apology. Our adversarial system has long discouraged the offer of an apology. Some attorneys believe, and perhaps rightly so, that an apology may constitute adverse evidence or infer that you are at fault. Some attorneys and laypeople believe that an apology is a sign of weakness or that an apology may undermine the universitys defense or the merits of its position. Defendants and defense counsel routinely worry that apologizing may only make things worse for the defendant. They may view an apology as an admission that leads to almost certain liability. Accordingly, many defendants avoid making an apology either on their own or on the counsel of their attorneys or insurer. Concern regarding the effect of an apology arises out of the use of the apology as an admission of responsibility. An apology by a party may be admissible under the exceptions to the hearsay rule allowing the admission of a partys own statements. Statements made in settlement discussions or in the course of mediation may be protected by other rules of evidence or by the local rules concerning mediation. Apologies made outside these arenas may be admissible.


Perhaps the safest case in which to make an apology is one in which it is clear that a mistake has been made or a wrong committed. At least one study suggests that plaintiffs lawyers view apologies differently than their clients and that a full and complete apology raises the plaintiffs attorneys expectations concerning settlement. Plaintiffs lawyers may set their aspirations higher and expect a larger settlement following an apology. Conversely another study indicates that an apology may lower jury verdicts. Researchers at George Mason University and Oklahoma State University found that apologizing resulted in lower frequencies of negligence verdicts.5 Another study conducted by a University of Illinois professor of law and of psychology resulted in similar findings:

Conventional wisdom has been to avoid apologies because they amount to an admission of guilt that can be damaging to defendants in court, she said. But the studies suggest apologies can actually play a positive role in settling legal cases. Robbennolt surveyed more than 550 people, gauging their reaction to apologies offered during settlement negotiations in a hypothetical injury case. She says apologies generally reduced financial demands, increasing prospects for an agreement. But the nature of the apology matters, according to a summary of her findings that will appear in Court Review, a publication of the American Judges Association. Apologies that accept fault have more impact than apologies that merely express sympathy, but take no responsibility [sic] Robbennolt says apologies that accept blame can be powerful psychologically, giving plaintiffs a sense of closure and accountability that makes them less angry and more willing to forgive. The apology fulfills some of the goals that triggered the suit, such as a need for respect, to assign responsibility and to get a sense that what happened wont happen again, she said. So receiving an apology can reduce financial aspirations and make it possible for parties to enter into discussions about settlement. For defendants, apologies can reduce legal costs as well as damages because cases may settle more quickly, said Robbennolt, who has studied the legal implications of apologies for a decade.

5 The study involved mock trials involving a lawsuit against an auditor whose actions led to a negative outcome. The researchers examined the outcome where the defendant offered an apology or justification (or both) as compared to situations where the defendant remained silent. Steven Mehta, Apology Influences Jury Verdicts, New Study Finds, MEDIATION MATTERS, October 7, 2009, (http://stevemehta.wordpress.com/2009/10/07/apology-infuences-jury-verdicts-new-study-finds/). See also ScienceDaily.com, Apologies May Fuel Settlement of Legal Disputes, Study Says, June 3, 2010, http://www.sciencedaily.com/releases/2010/06/100602121158.htm.


While plaintiffs respond favorably to apologies, another study by Robbennolt shows that lawyers react more in line with traditional thinking that apologies are an admission of guilt that can be used to leverage bigger settlements6.

VI. CLOSING THOUGHTS. Universities and colleges are complex entities. Mistakes and incidents are going to occur on every campus. University leaders should consider carefully whether an apology is warranted following a mistake or incident on campus. Increasingly, universities exist in an environment of increasing transparency and accountability. A university need not adopt a system of apologizing to more carefully consider whether to offer one following an incident or mistake. Often, people are resistant to making an apology since it means admitting one has made a mistake. Ultimately, the maker of the apology has no control over how the apology will be received. Commentators write about the transformational qualities of an effective apology. A contrite apology may reduce conflict and aid resolution while providing an opportunity for forgiveness. An apology may also help preserve relationships, credibility and integrity. There may be less damage to the universitys reputation where there is acceptance of responsibility and apology. Some health care providers have experienced a decline in lawsuits and reduced the time and attendant costs of litigation through a system of analyzing or investigating incidents involving potential negligence and apologizing and resolving those where they have concluded that a mistake was made. This approach is not inconsistent with an assertive defense philosophy where these same providers vigorously contest litigation where they believe there was no negligence. Some may be reluctant to apologize because they do not want to appear fallible or because they fear the potential response or reaction. Every institution, including universities and colleges, is fallible. We can all look to recent history for instances in which public figures and corporations may have been worse off because they apologized late or did not apologize at all. University counsel are in a unique position to guide the university in determining whether an apology may be an important part of conflict or dispute resolution. An apology may be an effective tool in addressing serious issues, incidents or problems on campus. It may not always be the right tool in very situation but university officials should consider this option when the university is involved in an incident or mistake where an apology may be appropriate.

6 ScienceDaily.com, Apologies May Fuel Settlement of Legal Disputes, Study Says, June 3, 2010, http://www.sciencedaily.com/releases/2010/06/100602121158.htm.



RESOURCES

Books:

Kandor, J. (2009). Effective apology: mending fences, building bridges, and restoring trust. San Francisco, CA: Berrett-Koehler Publishers.

Lazare, A. (2005). On apology. New York, NY: Oxford University Press, USA.

Wojcieszak, Doug, Saxton, James, & Finklestein, Maggie. (2007). Sorry works!. Bloomington, IN: AuthorHouse.

Smith, N. (2008). I was wrong. New York, NY: Cambridge Univ Pr.

Websites:

Kador, J. (n.d.). Effective apology. Retrieved from http://www.effectiveapology.com/

Kador, J. (n.d.). Effective apology blog. Retrieved from http://blog.effectiveapology.com/

Articles: Goodman, D. (2009, July 20). Saying `sorry' pays off for U. of Michigan doctors. Associated Press. Retrieved from http://abcnews.go.com/US/wireStory?id=8128259 Lazare , A. (2009). Go ahead, say youre sorry. Psychology Today, 40-43, 76-78. Levi, D. (1997). The Role of apology in mediation. New York University Law Review, 72, 1165-1210. Mehta, S. (2009, October 7). Apology influences jury verdicts, new study finds. Retrieved from http://stevemehta.wordpress.com/2009/10/07/apology-infuences-jury-verdicts-new-study-finds/ Wojcieszak, D., Banja, J., & Houk, C. (2006). The Sorry works! coalition: making the case for full disclosure. Journal on Quality and Patient Safety, 32(6). Retrieved from http://www.jointcommission.org/NR/rdonlyres/5E597FEF-6F86-480D-A1E2-CDD6CB491D3E/0/Sorry_Works.pdf

Hypothetical 1 Your university is served with a number of investigative subpoenas by the RIAA. Your IT department identifies the students from the IP addresses and other information contained in the subpoena. Several of the students settle with the RIAA, but one student refuses to do so. This student repeatedly and adamantly asserts that they did not download any music. Some time after the subpoena is served, the RIAA calls to confirm that you have identified the correct student. The student is sued in federal court and shortly before trial, RIAAs national counsel asks you to reconfirm that you have identified the correct student. You dutifully contact your IT department again and ask them to do so. Your IT department calls you a little later and informs you they have made a mistake and identified the wrong student. The misidentified student is one of your honor students and has incurred approximately $15,000 in legal fees defending the litigation initiated by the RIAA. Hypothetical 2 Your Vice President for Human Resources calls and relates that for a significant portion of your workforce (over 400 employees) you have over withheld federal income taxes for the current and two previous years. The mistake is the result of an error in the formula for computing payroll taxes. You learn that the over withheld taxes could amount to as much as $300 to $500 per employee and that the employees would need to file amended returns for the two prior years to obtain the refunds. Hypothetical 3 At one of your universitys hockey games, a fan seated behind your teams goal is struck in the face by a puck deflected above the glass from a slapshot from one of your teams players. The area where the fan was seated is behind the goal but above the glass behind the goal. The area is protected by a net that extends from the goal to the ceiling of your arena. The puck passes through the net hitting the fan. The fan suffers five broken teeth which are replaced with caps and suffers some mild but permanent scarring above the lip. Hypothetical 4 While at an internship site, one of your universitys nursing students makes an error in administering too high a dose of a drug, leading to serious injuries to a patient. The student confuses two bottles of the same drug with similar labeling, but different strengths. Hypothetical 5 An employee of your university is forced to find another job after she turns down the sexual advances of a coworker. The employee is terminated for performance issues, but complains following the termination that she was sexually harassed and fired for reporting the harassment. After the incident is investigated, you learn that the employee complained to her manager about the sexual harassment. It appears that the harassment complaint was overlooked or ignored and the employee suffered retaliation as a result of the complaints to her manager. Hypothetical 6 During a campus renovation project, your university constructs a pedestrian bridge over a deep ravine on campus. Not anticipating that students will leap off the bridge, it is constructed with relatively low sidewalls. Over time, several students leap off the bridge suffering serious injuries, and in one case death. It appears that some of the incidents are related to horseplay fueled by alcohol, and others may have been suicide attempts.

Lazare - UNDERSTANDING APOLOGY (NACUA) FINALDefinition and Semantics of ApologyThe History of ApologiesA Measurement of the Increasing Frequency of ApologiesThe Growing Importance of ApologiesCurrent Interest in the Apology Process The History of Apologizing in Medical PracticeHealing Mechanisms of the ApologyGoals of the ApologyFramework(s) of the Apology

An Integration of Healing Forces Learning to Apologize

Table One: A Comprehensive Outline to Healing Mechanisms in ApologiesMotives to ApologizeEmpathic ApologiesStrategic ApologiesResistance to ApologizingThe Timing of Apologies Apologies Offered Too SoonApologies DelayedPublic vs. Private ApologiesThe Role of Apologies in MediationThe Implications of ApologyConclusions

2010-06-25 NACUA Apology Article Final Version2010-06-24 Hypotheticals

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