California Law Journal, July 2010
James Woods knows the power of apology. The intense, versatile actor, known for roles in such films as “The Onion Field” and “Ghosts of Mississippi,” had no intention of even talking to representatives of Kent Hospital in Warwick, R.I., which he and his nephew had sued in the death of his brother Michael. But a “change in rhetoric” that included a heartfelt apology from hospital President Sandra Colletta ended his determination not to settle. The result, besides better feelings between the parties, was a financial agreement taking care of his brother’s children and a promise to create a patient safety institute in his brother’s name.
The apology “made discussion possible in a case where I had no interest in settlement and was absolutely certain of victory,” Woods said in an e-mail. His entire family, he added, “did agree that Ms. Colletta’s apology was genuine and not a ploy.”
Apology and disclosure are making headway in legal disputes — or even before a legal dispute has arisen. In the Woods case, the apology came in the lawsuit involving Michael Woods, 49, who died of a heart attack after being admitted for a sore throat and vomiting. A doctor testified that she ordered that he be put on a heart monitor, but that never happened. Testimony indicated Woods was on a gurney in a hospital hallway for more than an hour when he had his heart attack.
But apologies are not just limited to medical malpractice cases. University of Illinois law professor Jennifer Robbennolt has done a series of studies that show apologies can help resolve legal disputes in cases ranging from medical malpractice and divorce and custody to disputed dismissals and personal injury. “Conventional wisdom has been to avoid apologies because they amount to an admission of guilt that can be damaging to defendants in court,” says Robbennolt, who surveyed more than 550 people about their reaction to apologies offered during settlement negotiations in a hypothetical injury case. “But the studies suggest apologies can actually play a positive role in settling legal cases.
“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 won’t happen again. So receiving an apology can reduce financial aspirations and make it possible for parties to enter into discussions about settlement.”
The restorative justice movement, which is gaining adherents throughout the world, uses apology — written or verbal — as a way for an offender to accept responsibility for hurting a victim. The apology accepts that real harm was caused by his or her conduct and that the victim did not deserve the harm. Restitution comes after the apology. “Apologies make a huge difference,” says Noelle Daoudian, executive director of the
Victim Offender Reconciliation Program of the Central Valley, which practices restorative justice. But, she adds, they need to be sincere. “If the offender is not remorseful, we don’t want to revictimize the victim.” Apologies are used in cases from vandalism to theft to battery, Daoudian notes, and young people who go through the process have a lower recidivism rate than those who don’t.
Eureka attorney/mediator John Gromala says “an apology helps change the tenor of discussion,” and he has seen it work in right-of-way disputes, real estate transactions, partnership disputes, estate litigation, management team dysfunction, hostile work environment and estate planning. “Apologies have had significant impact in mediations I have conducted involving many different matters,” he says.
Still, the widest use to date of apologies in legal disputes involves medical malpractice. Some California hospital groups, including San Francisco-based Catholic Healthcare West (CHW) and the Los Angeles Veterans Administration, adhere to a policy of full disclosure, which means that “adverse events” are acknowledged and investigated. Hospital officials will make an apology if it’s warranted and in some cases offer compensation. Even if an apology is not due, the medical care team will make an effort to empathize with the patient’s concerns. Stanford University Medical Center has a variation called Process for the Early Assessment and Resolution of Loss.
“It’s just the right thing to do,” says Barbara Pelletreau, vice president of patient safety and clinical risk management at CHW. According to a document about the healthcare system’s philosophy, “CHW is committed to full and timely disclosure in a manner that expresses our values and fair compensation to a patient or the family by the responsible parties, whether that is CHW, one of our partner health care providers, or both.” The values to which the document refers are dignity, collaboration, justice, stewardship and excellence.
Dr. Lester Jones, a dean and professor at Western University of Health Sciences College of Podiatric Medicine in Pomona, is “a very big advocate of disclosure.” As associate chief of staff for 10 years at the VA Greater Los Angeles Health Care System, Dr. Jones created the disclosure program there and organized the meetings with patients and their families to explain what had happened. A discussion may have to do with bedsores, loss of life or limb or near-misses like how a nurse stopped just short of dispensing the wrong medicine or how a doctor determined that he was about to operate on the wrong cataract.
“Many of us always practiced honesty,” says Dr. Jones. “I always told my patients about the outcome of everything I did for them. Over the years, I found people appreciated being told in advance what my expectations were . . . Disclosure is really about open communication.”
An apology, he adds, “sets the stage for a totally different atmosphere” than the one in which the patient and his family vow to punish to the utmost and get as much money as possible. With an apology, many who are offered the opportunity to sue don’t take it, says Dr. Jones. “When you’re honest with people and showing you’re trying to prevent adverse events, people get behind you and want to support you.”
The goal of the apology was not to prevent lawsuits, Dr. Jones emphasized. It was to do what’s right, and being honest with the patient goes hand in hand with the aim of openly acknowledging mistakes so safer procedures and systems can be created. “We were realizing there were a lot of medical misadventures taking place at the VA and we knew something needed to be done,” Dr. Jones says.
Carol Bayley, vice president of ethics and justice education for CHW, warns that there’s a big difference between disclosure and apology. “You have to be careful you don’t apologize for something you didn’t do.” That doesn’t mean health officials have to refrain from empathizing if something goes amiss and they don’t believe it’s their fault. California is one of 35 states that has a version of the “apology” law, which holds that apologies are inadmissible as evidence in court. However, “I’m sorry for what happened” is not the same as “I made a mistake,” and an admission of responsibility is admissible.
“The California Evidence Code manifestly discourages the human tendency to apologize or express regret over an incident caused by negligence,” retired Judge Quentin Kopp wrote in support of California’s apology law. “Yet, apologies reduce the anger of those who otherwise would sue from anger.”
Los Angeles healthcare attorney Harry Nelson says he counsels his doctor clients “to be careful because they can make heartfelt expressions of empathy (that carry apologetic overtones) without putting themselves at risk of an admissible statement, but if they actually apologize in a way that takes responsibility, that becomes admissible evidence.”
Nelson has had experience “where the doctors set the table for nominal settlements — and at least one case where the matter was resolved without money — by empathetic communications.” Still, he adds, most plaintiffs have some “hard cost,” such as follow-up care or an operative procedure. “If they feel the doctor was empathetic, they will resolve cases for those hard costs and forego the larger ‘pain and suffering’ damages that a malpractice lawsuit would seek.” He doubts, though, “that even the best apology would get them to not seek at least those hard costs.”
When responsibility does lie at the feet of the doctor, nurse or some other healthcare official, not just any apology will do. “If it’s scripted or if it sounds like some lawyer wrote it, I promise you, the family won’t bite,” says Doug Wojcieszak, founder of the Sorry Works! Coalition, an organization that promotes disclosure, apology and upfront compensation when warranted. “When something goes wrong to upset the patient or upset the family, the first thing to do is empathize: ‘I’m sorry this happened; we’re going to investigate.’ Even if you don’t think you made a mistake, empathize.” If the investigators find that the medical practitioners were at fault, “go back to the family and apologize.” Even if no fault is found, he recommends explaining the investigators’ findings to the family.
“It changes the discussion from, ‘I want to punish you; I want to get as much money from you as I can,’” to a conversation about what the patient and her family need. If there is fault, Wojcieszak adds, “money will still exchange hands, but it’s not a lottery ticket.” There also are savings in litigation costs and time, he notes. If cases do go to court and a patient has already turned down what seems like a reasonable offer of compensation, the hospital or doctor “isn’t the bad guy anymore.”
CHW representatives say they don’t know if lawsuits have decreased as a result of disclosure, but others who have adopted the policy say it has made a difference. The University of Michigan Health System reports that malpractice claims against its system fell from 121 in 2001 to 61 in 2006. Average time to process a claim decreased from 20 months to eight months and costs per claim were half as much. The VA Medical Center in Lexington, Ky., the pioneer in full disclosure, reported that in a 13-year period, the facility went to trial only three times and negotiated more than 170 settlements, the mean cost being $36,000 compared to $98,000 pre-trial, $248,000 at trial and $413,000 malpractice judgments at VA hospitals nationwide. On the other hand, a survey of legal, risk management and healthcare officials by a group of Harvard researchers led by David Studdert found that there was a 95 percent chance that total claim volume would increase with full disclosure policies.
Wojcieszak, of Sorry Works!, says the study is flawed in large part because the researchers did not contact any institutions that practice full disclosure. From what he has seen, Wojcieszak adds, the policy works for both patients and hospitals and the apology philosophy can work in cases far beyond medical malpractice. “This is so applicable to every walk of life,” he says. “When you talk about disputes in general, whether medical malpractice or business, it’s about a breakdown in communication, a breakdown in trust.”
We are lucky to live in Tennessee, where the State Supreme Court provides guidance for Alternative Dispute Resolution. We are even more fortunate that our state has a strong provision for mediation–a way for disputing parties to settle their conflict out of court in a way that passes legal muster and has staying power.
Let’s take a closer look at Tennessee Supreme Court Rule 31 (you can read the full text here) and what makes it good for those in a dispute.
First, Rule 31 defines mediation as “an informal process in which a neutral person conducts discussions among disputing parties designed to enable them to reach a mutually acceptable agreement among themselves on all or any part of the issues in dispute” (Section 2 (i)).
Second, it’s important to note that Rule 31 applies only to mediation as a result of civil or domestic court cases. Conflict resolution outside of these proceedings (i.e. organizational dispute resolution and other non-legal conflict management) can be handled however the parties wish. However, Tennessee’s mediation requirements are so robust that they can, and should, be used as a guide for non-civil conflict resolution.
To mediate cases referred by a court in Tennessee, the mediator, or Neutral, must be Tennessee Supreme Court Rule 31 Listed and in turn adhere to the standards set forth in TSC Rule 31.
These include standards such as maintaining confidentiality of all dispute resolution proceedings except where required by law to disclose, maintaining impartiality and promoting a balanced process and ultimately assisting the parties in reaching an informed and voluntary settlement.
Tennessee’s (ADR) rule also provides for simplicity. The neutral need only file a report stating that the matter was or was not resolved. In fact, the Supreme Court rule requires that the mediator’s report only state this condition along with the names of the parties. No other details about the settlement are allowed.
If you are in a dispute and you need confidentiality. Mediation under Rule 31 is key.
But what really makes Tennessee’s mediation law powerful is that it gets to the heart of what conflict resolution really is. In doing so, it requires that the mediation process be guided by the parties involved. If the parties mutually create and agree upon the terms of a resolution to their problem, it is very unlikely that they will be back in conflict anytime soon. It is then the mediator’s job to make sure that the terms of the resolution pass legal muster. That means that each mediation results in a contract (not disclosed to the court) and that this contract be a binding agreement, keeping the parties out of court again.
We can thank a very strong Supreme Court Rule for making ADR a preferred method of civil and domestic dispute resolution for Tennesseans.
The recent and ongoing controversy over race profiling and inequitable treatment of African-Americans under the law raises so many questions about the American legal system’s ability to be color blind. Protesters in many U.S. cities now carry signs on which slogans draw attention to inequality in the enforcement of the law. In my own city, Chattanooga, signs held by protesters read “Indict the System.” Though it is hard for us to imagine how one would indict a system that provide us with the act of indicting itself, this sentiment points to an important move toward resolving disputes.
As a practitioner of Alternative Dispute Resolution, indicting the system is exactly what we do every time disputants come to our mediation room.
Our legal system is based upon the idea that guilt (in the criminal sense) or fault (in the civil sense) to one person or one side in the dispute. It then falls upon the prosecution, or the claimant, to build a story about their absolute righteousness. In that story, the other side is portrayed as less than deserving of equal treatment. The claimant, or in criminal cases, the prosecution, must tell a story in which they have come to harm by a demoralized, dastardly perpetrator. The other side must contend that the claim is morally unsound — it is made for political reasons, or the investigation was flawed, or the witnesses in support of the claim were untruthful, and on and on.
In the investigation of the Michael Brown case, the indictment hearing for Ferguson, Missouri Police Officer Darren Wilson included details about the officer’s mother’s criminal history as well as Michael Brown’s alleged delinquencies. It included all kinds of details woven into a narrative to make both sides appear either good or evil.
Our legal system’s “winner-takes-all” approach to dispute resolution encourages this type of positional bargaining in both criminal and civil cases. The system creates a game board on which one side must win and another must necessarily lose. These stakes make dispute resolution in courts expensive and never-ending.
It also reveals the filters — or cognitive biases — that everyone carries with them throughout their lives. Race is a cognitive filter, so is social class. Was either party to the tragedy in Ferguson the result of bad parenting? Was it white vs. black? poor vs. poor? Government vs. citizen? Citizen vs. criminal? All of these categories are abstractions that we use to filter the events we perceive so that we can find meaning in them. So that we can, for ourselves, find the right side of the moral scale.
The lesson from alternative dispute resolution is that basing our judgments of us vs. them will lead to more conflict rather than resolution. A trained collaborative mediator would assume that both parties play a part in a dispute. And that resolution would require that we look at that dispute as a relationship that must bring forth the terms of its own resolution.
Mediators ask: given that both parties are part of this dispute, what does resolution look like to them and in their own words?
Mediators challenge notions of guilt as well as cognitive filters. These abstractions have little place in true dispute resolution.
The legal system, at its foundation, engenders conflict between two opposites. Mediators then spend a lot of time building trust and opening lines of communication that were broken down by the traditional adversarial approach. What if we didn’t walk around on the street with an us vs. them mentality in the first place? In conflicts what if parties were given an opportunity to better understand one anothers’ position in a confidential setting and to find the true human needs behind the demands for money, objects, and retribution.
In civil cases, this is what alternative dispute resolution provides: a confidential setting in which parties mutually provide the terms of resolution to their dispute. This terms are then written into a contract that the mediator ensures passes legal muster and has staying power.
The practice of alternative dispute resolution pertains to civil law cases but the premises of mediation upon which ADR is built can address much broader conflict.
What will you learn…Basic mediation theory, as well as, real-world application.
Upcoming Course Schedule:
40-hour General Civil Mediation
46-hour Family Mediation
Family to General Civil Mediation Cross-Over
General Civil to Family Mediation Cross-Over
General Civil Mediation Law, Ethics and More
Family Mediation Law, Ethics and More
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