The Apology in Mediation

Never Under Estimate The Restorative Power of  the Apology in Mediation

 

Sitting in on a couple’s dispute is a privilege reserved for a few.  During a course of a mediation session, the Mediator is not only confronted with the issues in dispute from both parties’ individual perspectives but the Mediator also has the opportunity to witness whether the dispute unfolds towards resolution or deadlock. As a third party witness to dispute development and the various mechanisms people use to eradicate a dispute, one key factor that has never ceased to amaze me is how the role of apology in resolution. The offering of a sincere and well-timed apology in mediation can have the potential to not only stop the dispute in its tracks but also move the parties towards an expedited process of mutual healing and peace.

 

THE ROLE OF AN APOLOGY IN MEDIATION

 

Random and insincere apologies understandably exacerbate a dispute causing positions to be further entrenched thereby moving the dispute closer towards deadlock. The unfortunate reality hereof is that entrenched positions and deadlock on issues of rights and responsibilities often acquire an explosive life of their own necessitating third party adjudication and/or legal intervention which is not only time-consuming but financially prohibitive for most people. Enter on stage, the power of the apology to move a once intractable dispute to one where understanding and resolution become the order of the day.

 

The solution for impasse resolution is often nothing more than the offering of sincere apology to the offended party. Is a well-meant, sincere apology really that powerful? Absolutely. There is sufficient research to prove this point and Lawyers and Mediators alike would be well placed to assist clients to never overlook in preparing for the mediation the power of an apology to unlock the door to future peace and resolution. 

 

CRITICAL COMPONENT FOR THE MEDIATION APOLOGY

 

In a nutshell, in order to be classified as sincere, the apology must:-

  • Take into account the offended party’s experience of the situation causing offence;
  • The offending party must resolve not to knowingly or wilfully repeat the action or communication causing offence;
  • The apology must be made unreservedly in other words it must not be dependent upon the offended party also apologizing for their alleged role in the dispute or an aspect of the dispute (undoubtedly such course of action is recommended but if the apology is made on the basis that there be a counter-apology it is clearly not unreservedly made)
  • The apology must be made without justification or explanation for the past conduct or words that were spoken; and
  • The apology must in addition be without correction or advice as to how the offended party should in the future act, speak, or conduct themselves or how they should have at the time in question, acted, spoke, or conducted themselves.

 

POSSIBLE NEGATIVES OF A MEDIATION APOLOGY

 

There is always the unfortunate possibility that communicating an apology may lead to the offended party assuming a moral high-ground and passionately pursuing further legal intervention. What the offended party chooses to do with the apology is neither predictable nor generally preventable but it is worth bearing in mind that from a court’s perspective, an apology is usually taken into account (its influence on the outcome depending entirely upon the circumstances of the matter) and it will generally serve to act as a mitigating factor from a judgment and outcome perspective.

 

WHEN ALL IS SAID AND DONE, APOLOGIES REMAIN CRITICAL KEYS 

 

As a rule, though a sincere and unreserved apology timeously made in mediation has great potential to release resentment, bitterness, anger, and hatred and promote trust and dialogue – an essential requirement particularly where children, extended family, and close-knit friendship circles are involved.

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