Originally published in Mediation Committee Newsletter, September 2006
The province of British Columbia is the first Canadian jurisdiction to introduce a law providing a safe harbour for apologising. The BC Apology Act1 took effect on 18 May 2006.
The Act protects apologies made in connection with any matter, other than in a criminal context, and deems them inadmissible as evidence regarding the fault or liability of a person in any British Columbia court, arbitration or other tribunal proceeding. The Act states that an apology does not constitute an admission of fault or liability and must not be taken into account in the determination of fault or liability in connection with the matter to which it relates.
‘Apology laws’ have existed only since the late 1980s. They have been implemented in more than 20 US states2 as well as in Australia. There is growing evidence that apology laws lead to a reduction in both the number of lawsuits and the time required to settle lawsuits in which apologies are made. In contexts outside formal apology legislation, such as the pilot project in Illinois – the ‘Sorry Works’3 programme, results have been impressive,4 demonstrating that providing a safe harbour for apologising is a pragmatic approach to dispute resolution. The BC Apology Act takes the more aggressive form of apology legislation, as seen in jurisdictions such as Arizona,5 Colorado,6 Oregon7 and New South Wales,8 where not only expressions of sympathy and benevolence are protected but also fault-admitting apologies. This distinction between apologies that admit fault and those that do not is the major difference between the various apology laws. To date, only British Columbia and jurisdictions such as those mentioned above have gone so far as to protect apologies that admit fault.
Perhaps the first way that people learn to resolve disputes, at least in many Western cultures, is through apology. Children are told by their parents and teachers to apologise for something they have done wrong. However, as adults, and especially in business dealings, people tend not to apologise when a conflict arises. Rather, they tend to engage in adversarial dialogue – often through lawyers. First and foremost, people are taught to protect themselves. As lawyers, we counsel our clients not to do or say anything that could be argued to be an admission of liability. Insurance companies tell their insureds not to apologise or take responsibility after an accident. Risk managers at hospitals advise doctors not to apologise after making a medical error. The tendency is to deny responsibility whenever possible. Research shows that this leads to disputes being litigated when they may have been resolved or mitigated through an apology. Daniel W Shuman states, ‘Tort plaintiffs often claim that what they really wanted was an apology and brought suit only when it was not forthcoming ...’9 But many remorseful people and organisations simply cannot apologise without the risk of admitting legal liability. As a result, lawsuits routinely end in settlements with no party accepting responsibility.
In various contexts, apologies have been shown to help prevent or mitigate lawsuits, rather than create a liability problem, and to decrease transaction costs associated with settlements and speed up the settlement of disputes. For example, in Japan, where lawsuits are much less common than in North America, in 1982 a Japanese airline president completely avoided lawsuits by apologising personally to the families of victims involved in a plane crash resulting from a psychologically-troubled pilot.10
In the public arena, groups that have been harmed by government action, or inaction, frequently have an apology on their shortlist of demands. This phenomenon can also be seen in cases of institutional abuse, such as that described in 2000 by the Law Commission of Canada in ‘Restoring Dignity: Responding to Child Abuse in Canadian Institutions’.11 In this situation, the victims wanted an apology to help repair the damage that had been done. The Ombudsman of Tasmania, in interviewing adults who complained that as children they had been abused while in state facilities, found that most were seeking an apology in addition to information, counselling and an acknowledgment of the abuse.12 The Truth and Reconciliation Commission in South Africa demonstrated the power of an apology. Public figures, such as former US president Bill Clinton after the Lewinski affair, have also utilised the power of an apology to regain the trust of constituents.
Apologies are particularly opportune in disputes that have a personal element. They can go a long way to changing the dynamic between the parties and to helping a person feel whole again, and are thus well suited to employment disputes, personal injury claims, medical malpractice and other comparable disputes. In fact, it is specifically in the arena of medical malpractice that many apology laws have been introduced.
Steven Keeva, a Chicago litigator who has suggested that apologies help avoid trials, cites US research that indicates that about one-third of medical malpractice lawsuits could have been prevented if doctors had apologised to their patients.13 This was similar to the finding of a 1994 study in Britain that demonstrated the effect of a complete explanation and apology by doctors in possibly preventing medical malpractice suits.14 In addition, a study of malpractice suits arising from prenatal injuries showed that 24 per cent of claimants in Florida commenced lawsuits when ‘they realised that physicians had failed to be completely honest with them about what happened, allowed them to believe things that were not true, or intentionally misled them’.15 According to Susan Healey, president of the Ontario Association for Family Mediation, ‘An apology is a pretty powerful thing’, and can substantially reduce the time taken to reach a settlement.16 This is illustrated by the practice at the Veterans Affairs Medical Center in Lexington, Kentucky. In 1987 the medical centre adopted a policy to be open and honest with patients after the commission of medical errors, and to provide a swift apology and settlement offer. The programme, which fosters settlement, ‘reduced [the VA Medical Center’s] claims payments from among the highest in the 178-hospital VA system to one of the lowest’, even though the rate of malpractice did not decline.17 Said the hospital’s chief of staff, ‘If everybody did this nationwide, every patient who was injured would get fair compensation, the lawyers would get nothing, and you wouldn’t see $12 million verdicts.’18
Even in commercial disputes, it is common for the people involved to have an emotional reaction to the other party’s conduct. They may feel angry, disappointed, betrayed or cheated. They often continue to engage in the management of the dispute and to make decisions that are influenced by their personal emotions. In these disputes, especially in the context of relational contracts (though even in transactional contracts), apologies may mitigate – even if alone they do not resolve – the dispute.
'The apology as object of exchange may have a value equal to the apologiser’s savings of damage payments and/or transaction costs.'19 Apart from their possible value as objects of exchange, apologies may accomplish the desired result by shifting the ‘power and shame balance’, whereby the victim feels empowered by being put in a position to accept an apology and the wrongdoer takes on the victim’s ‘shame’ in the process. It appears that often what victims want in addition to, or even instead of, financial compensation are apologies. As Hiroshi Wagatsuma and Arthur Rosett express it, ‘while there are some injuries that cannot be repaired just by saying you are sorry, there are others that can only be repaired by an apology’.20 And they point out that apology ‘is a social lubricant used every day in ongoing human relationships’.21 Susan Alter, in her 1999 report for the Law Commission of Canada, said, ‘For a victim, an apology is often considered to be the key that will unlock the door to healing.’22 Victims particularly want an apology where the real harm is non-pecuniary and thus difficult to measure in monetary terms. In the defamation context, apologies are often sought and are a key component of many settlements.
In situations in which a corporation’s conduct has resulted in highly-publicised and widespread harm – for example, product defects and environmental damage – crisis management experts counsel early apologies. When the potential harm to a corporation’s reputation and brand is significant, the potential liability-admission consequences will be pushed aside in favour of a speedy, decisive and public apology, often given by the CEO. Particularly in jurisdictions with juries and punitive damages, the decision to apologise may also be a wise tactical decision for future lawsuits that are inevitable.
Apologies have historically played a key role in repairing relationships and have occupied a central role in dispute resolution. In the context of mediation, in which apologies are not uncommon, Shuman says, ‘Mediators report that apologies often help to resolve disputes; parties who receive apologies are often more willing to settle than those who do not.’23 Mediation provides a safe forum for apologies in many jurisdictions because what occurs in a mediation is protected through several means: as an extension of the concept of ‘without prejudice’, through statutes such as the Uniform Mediation Act in the United States, through confidentiality and subsequent non-use agreements and through common law privilege as delineated by the application in Canada of the Wigmore rules of evidence.24
As has been remarked, ‘An apology may be just a brief moment in mediation. Yet it is often the margin of difference, however slight, that allows parties to settle. At heart, many mediations are dealing with damaged relationships. When offered with integrity and timing, an apology can indeed be a critically important moment in mediation.’25
It must be remembered that the purpose of laws that exclude from evidence statements made in mediation is, as Jonathan Cohen says, ‘to facilitate a conversation between the parties, a conversation that can help them transform the dynamic between them, which could help them resolve the dispute’.26 Deborah Levi notes, ‘According to some advocates of mediation, the emphasis on communication and voluntariness renders mediation more likely to resolve disputes than adversarial-style litigation.’27
If made outside mediation, or some other ‘without prejudice’ context, apologies will be admitted into evidence (assuming they are uncoerced utterances).28 As a result, if litigation is a possibility, a prospective defendant will be concerned about the repercussions and will be reluctant to apologise. The defendant is thus deprived of the opportunity to use an apology to mitigate or resolve the dispute at an early stage. Once most lawsuits get to the point of mediation, the opportunity for an effective apology has often been lost, underlining the importance of using the apology as a tool at the earliest stage possible in the resolution of the dispute. A strategic benefit of the apology, according to Cohen, is that ‘if the injured party receives the apology early enough, she may decide not to sue’.29
Legislation that protects apologies by making them privileged and not susceptible to being used subsequently in court enables defendants and potential defendants to do what they otherwise could only do safely in mediation – that is, attempt to resolve the dispute by apologising. By protecting apologies, legislation facilitates early apologies, which in turn facilitates dispute resolution. Without a privilege being applied to apologies, they seldom will be made outside mediation.
The British Columbia Apology Act sets the stage for persons and companies being sued in British Columbia to take advantage of the benefits of an apology without the risk that it will be regarded as an admission of liability.
1. SBC 2006, c 19.
2. Catherine A G Sparkman, ‘Legislating Apology in the Context of Medical Mistakes’ (2005) 82:2 AORN Journal August, 263.
3. ‘The Sorry Works! Coalition believes and advocates that apologies and upfront compensation for medical errors reduce lawsuits and liability costs while providing swift justice for more victims and reducing medical errors’ www.sorryworks.net (accessed 18 May 2006).
4. As a result of the success of the Sorry Works! programme, the US government introduced, on 29 June 2005, federal bi-partisan legislation (Bill S 1337 – A bill to restore fairness and reliability to the medical justice system and promote patient safety by fostering alternatives to current medical tort litigation, and for other purposes) that will provide grants for similar pilot programmes at the state level. The bill was referred to the Committee on Health, Education, Labor, and Pensions, where it remains, as of this writing date.
5. Arizona S1036, available at www.azleg.state.az.us/legtext/47leg/1r/ bills/sb1036h.pdf (accessed 18 May 2006).
6. Colorado CRS 12-25-135, available at http://126.96.36.199/colorado/ lpext.dll?f=templates&fn=fs-main.htm&2.0 (accessed 18 May 2006).
7. Oregon ORS Sec 677.082, available at www.leg.state.or.us/ors/ 677.html (accessed 18 May 2006).
8. New South Wales Civil Liability Act (2002).
9. Daniel W Shuman, ‘The Role of Apology in Tort Law’ (2000) 83 Judicature 180.
10. Hiroshi Wagatsuma & Arthur Rosett, ‘The Implications of Apology: Law and Culture in Japan and the United States’ (1986) 20 Law & Society Review 461.
11. Ottawa: Law Commission of Canada, 2000.
12. Ombudsman of British Columbia, The Power of an Apology: Removing the Legal Barriers, Special Report No 27 to the Legislative Assembly of British Columbia (Victoria: BC Office of the Ombudsman, February 2006) at 10.
13. Ibid. at 13.
14. Charles Vincent, Magi Young and Angela Phillips, ‘Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action’ (1994) 343 Lancet 1609.
15. Jonathan R Cohen, ‘Advising Clients to Apologize’ (1999) 72 Southern California. Law Review 1009, citing Gerald B Hickson et al, ‘Factors That Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries’ (1992) 267 Journal of the American Medical Association at 1361.
16. Richard Blackwell, ‘Safe to say "sorry" with new B.C. bill’ The Globe and Mail (29 March 2006).
17. Jonathan R Cohen, ‘Apology and Organizations: Exploring an Example from Medical Practice’ (2000) 27 Fordham Urban Law Journal 1447 at 1449.
18. Ibid. at 1451.
19. Deborah L Levi, ‘The Role of Apology in Mediation’ (1997) 72 NYU Law Review 1165 at 1176.
20. Supra n 9 at 487 (emphasis in original).
22. Susan Alter, Apologising for Serious Wrongdoing: Social, Psychological and Legal Considerations, Ottawa: Law Commission of Canada, 1999.
23. Supra n 8 at 183.
24. As reported by Catherine Morris in ‘Legal Consequences of Apologies in Canada’ (draft working paper presented at a workshop entitled ‘Apologies, Non-Apologies, and Conflict Resolution’, University of Victoria, 3 October 2003). The Wigmore Rules for finding a legal privilege were affirmed by the Supreme Court of Canada in Alavutych v Baker (1975) and R v Gruenke (1991), and were used to exclude evidence in Marchand v Public General Hospital of Chatham, a civil mediation case.
25. ‘What It Means to Be Sorry: The Power of Apology in Mediation’, Mediation Matters (17 July 2004), online: DivorceNet www.divorcenet.com/states/maryland/mdart_14.
26. Jonathan R Cohen, ‘Legislating Apology: The Pros and Cons’ (2002) 70 University of Cincinnati Law Review 819 at 849.
27. See supra n 18 at 1171.
29. See supra n 14 at 1022.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.