The dispute and the parties
Obviously there are going to be certain disputes where apologies are going be wholly irrelevant and will achieve nothing to progress the mediation. For example, two large companies with lawyers in attendance in a commercial dispute are not going to be interested in receiving or indeed giving an apology and any such suggestion by the mediator could have the effect of raising doubt about the possibility of an agreement being reached if time is spent on what could be considered by the parties to be unnecessary or even a loss of faith in the ability of the mediator in failing to understand the parties’ needs.
However, in a matter such as boundary dispute between two lifelong neighbours or even a clinical negligence case, an apology may just be the olive branch needed to enable both parties to put principles or hurt feelings aside in order to start thinking about reasonable proposals that could be made and concessions on their part in order to work towards an agreement being reached. Evidently, if there is evidence of a pre-existing relationship between the parties and the sustainability of that relationship being in both of their interests to maintain in the future (e.g. neighbours, supplier/sellers, colleagues) it would certainly by worth considering if an apology could effectively allow the parties to move past their feelings and onto consideration of their actual needs to resolve their dispute.
It will be a decision for the mediator as to when an apology would be most effective. Clearly, if delivered too early, the apology could come across as insincere to the recipient and potentially be rejected, which would result in a setback to the mediation. Alternatively, notwithstanding the phrase “it’s never too late to apologise”, if offered in one of the later sessions, the prospect of the momentum that an apology could have created is simply lost and, in the case where hurt feelings play a major role, parties are less keen to be proactive in proposing solutions to their dispute.
A mediator must always be facilitative and not instructive and caution must be exercised if the concept of the apology is going to be mooted. The Oxford Dictionary defines an apology as “a regretful acknowledgment of an offence or failure”. With this definition in mind, if it is suggested to a party that an apology may assist and the party disagrees, this could have the effect of “raising their heckles”, resulting in a stalemate or an accusation of bias on the part of the mediator. It would be wise for the mediator to effectively take their cue from the language used by the party. For example, if they express regret at the stage the dispute has reached or perhaps note that it is a shame that relations have broken down so much or are even nostalgic about what once existed between the parties, it may be that these feelings can be explored with the mediator and that would naturally lead to the suggestion of an apology. An apology should always be an avenue by which to reach a settlement rather than the crux of the settlement itself.
Accordingly, not every mediation is going to be suitable for apologies to be made and ultimately it will be a matter of discretion for the mediator to consider if an apology should be raised as an option to see if it will actually help resolve the dispute or whether it runs the risk negatively impacting upon the mediation process.
For any questions regarding LPC Law’s mediation services, please contact Laura via firstname.lastname@example.org or visit our Mediation page on our website.