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By Steven G. Mehta

In mediation, there are frequent occasions where a party may feel genuine remorse and apologize for his or her actions.  However, in the cynical world of litigation, everyone doubts when the other side acts remorseful.  How can you tell when a person genuinely feels remorse?  Canadian researchers think they have the answer.

Leanne ten Brinke and colleagues discovered that when people are faking remorse, they giveaway “tells.” Signs of fake remorse include:

More emotions in a shorter period

Emotional mood swings (the researchers term “emotional turbulence”)

Speaking with greater hesitation

The researchers analyzed nearly 300,000 frames of taped interviews to investigate the tells. They found that people who displayed false remorse displayed more happiness, sadness, fear, disgust, anger, surprise, and contempt — than those who were genuinely sorry.

The researchers found that people who were genuinely remorseful did not often swing directly from positive to negative emotions, but went through neutral emotions first. In contrast, those who were deceiving the researchers made more frequent direct transitions between positive and negative emotions, with fewer displays of neutral emotions in between. In addition, during fake remorse, people hesitated more in their speech patterns.

By its own admission the study is limited in scope.  However the discovery regarding emotional states being tells of remorse is fascinating and requires further observation before we can set it into reality.

Research Source:

ten Brinke L et al (2011). Crocodile tears: facial, verbal and body language behaviours associated with genuine and fabricated remorse. Law and Human Behavior; DOI 10.1007/s10979-011-9265-5

http://psychcentral.com/blog/archives/2011/02/10/can-you-fake-feeling-remorse/

By Steven G. Mehta

With Tiger Wood’s apology out today, the question that everyone is asking (in light of other sex scandals) is:  “Is this apology genuine?”  There are many opinions on this issue, but I think another question that is missing is “will the victim accept that apology?”

First, here is the apology from Tiger Woods.

There is a good likelihood that the public will probably accept his apology as genuine.  After all, other celebrities such as Robert Downey Jr., Mike Tyson, Kobe Bryant, Bill Clinton (and the list goes on) have had scandals and then made it back in the public light.

But in private, the answer may be very different.  We certainly know that Kobe bought a huge diamond ring for his wife.  We suspect that Bill had some deal with Hillary so she could also maintain her bid for the oval office.

In mediation too, the answer can be different than the fickle nature of the public.  Sometimes an apology – although giving the maker of the apology a feeling of relief – can have little or no impact on the receiver of the apology.

In order for an apology to have a meaningful affect there have to be two main preconditions:  The apology has to be right and the victim has to be in a position to willingly accept the apology.

Is The apology right?

There are several views of whether an apology is appropriate for the circumstances.  Holly Weeks of Harvard suggests that the following is necessary for an apology to be appropriate:

1. Find words that are clear and accurate—not provocative. A good apology should make the person wronged think, “Yes, she understands.” Often what the offended person wants is accountability and vigilance; he wants to know that it won’t happen again.

2. Don’t apologize for the wrong thing. People and institutions tend to apologize for what they find forgivable. If there is no clear relationship between what the offender is apologizing for and what the offended experienced as the original wrong, the apology actually exacerbates the problem. At best, the offender will seem blind to the problem; at worst, he will be perceived as intentionally distorting it.

That gives the offended two problems: the original offense and the sense that a similar offense is likely to occur. The offended party thinks, “How can I accept this apology? It makes me appear to be complicit in allowing the problem to happen again.”

3. Consider the angle of approach. Decide whether it will be easier for you to apologize position to position or person to person. If you are angry with the person you’ve got to apologize to, it may be easier to frame the apology in terms of your respective jobs or ranks.

For example, while the senior executive remains angry at the junior vice president, he can’t offer a sincere personal apology. But he could apologize to her as a senior administrator to a more junior colleague, from his position to hers. Example: “We both work for a good company, and, as your colleague, I should try harder to see past our individual differences. I’m sorry I spoke harshly.”

Such an apology is likely to resonate favorably with both parties, even when anger between them remains.

In other circumstances, a person-to-person apology is easier to offer. For someone who equates an apology with loss of stature, for instance, the person-to-person apology can appear to be a magnanimous act that does not diminish her. Example: “I can’t agree with the stance you are taking, but I like you and want us to work well together. I’m sorry I spoke harshly.”

Choose the approach that is easier for you to do well. That will save you from making an apology that is so grudging that it fails.

4. Don’t think in terms of an “expression of regret.” Instead, your goal should be actually communicating your regret, that is, getting it across to the other person. Expression is one sided—as though one were getting an apology off one’s chest. Communication, however, occurs between people, and an apology needs to work well for the other person to be effective. Take the focus off yourself and keep it on your counterpart and the three elements of an apology—acknowledgment, regret, and responsibility. That protects you from sounding defensive, and your apology will be better received.

5. “I want to apologize” is not an apology. It’s no more an apology than “I want to lose weight” is a loss of weight. Do the work. Deliver a clear, direct apology; don’t hide behind vagueness, circumlocution, or clichés.

You may not be able to control whether your apology is accepted, but you can control its quality. So make every effort to control what you can. This will increase your chances of feeling good about what you have done with your apology—instead of feeling bad about having to do it. (To read the rest of her article, click here.

In general, an apology should have the following ingredients:

A detailed account of the situation

Acknowledgement of the hurt or damage done

Taking responsibility for the situation

Recognition of your role in the event

Statement of regret

Asking for forgiveness

Promise that it won’t happen again

A form of restitution whenever possible

However, the apology is not just a rote list of ingredients.  There is just as much art to the apology as there is science.

Is The Offended Party/Victim Ready To Accept the Apology

One of the necessary preconditions for the apology being accepted is the ability of the victim or offended party to be heard.  One study found that later apologies were more effective in part because the victim was given an opportunity to be heard about her feelings.  See, Better Late Than Early, The Influence of Timing On Apology Effectiveness.  Although there is debate as to the timing of the apology, it is generally agreed that the apology needs to provide the plaintiff to be heard, to express their feelings and to be satisfied that the repentant person is in fact repentant.

Often, the apology is also a form of allowing the victim to be raised in stature and for the person who is apologizing to be lowered in stature.  Many times in older traditions, people bow their heads in apology.  This is also a symbolic gesture of lowering your head at the mercy of the other person.  The apology must give the victim a sense of power over the person who created the offense.  Failure to transfer that sense of power will not be a hospitable condition for the apology.

Sometimes, the apology requires the victim of the offense to understand that the offending party has suffered.  Some people require that the offending person give that pound of flesh.  Only then will the apology be accepted.

Finally, no matter what you do, there can be the apology that may never get accepted.  That is the risk of the apology.  Many people think that the mere fact that you made the apology means that the other person has to accept it.  On the contrary, the apology should reflect that you know that you have done wrong, and that you are at the mercy of the other person to accept it.  The nature of the apology means that the other person doesn’t have to accept it, but you have to give it to ever have a chance of it being accepted.

So in the end, How Did Tiger Do?

I would say that Tiger scored with high marks for his apology .  He outlined his transgressions, acknowledged the hurt to his family and supporters, owned up to the problem as his problem and not others’, demonstrated regret and as for forgiveness while demonstrating that he will change and that this will never happen again.

By Steven G. Mehta

Many times in mediation, the question or issue arises as to whether a party is making an apology because it genuinely feels remorse or whether the party is simply saying it to gain some form of economic advantage.  As you will see, those same apologies, when done wrong can backfire terribly.

This issue has been raised in two different forums in the world recently.  First, the issue has come about with regards to Toyota’s apology to the world.  Indeed, in Japan when parties express regret they are (by culture) required to bow deeply.  Toyota’s C.E.O. has apologized for his company’s massive recall, but questions have risen whether his apology and bow were sufficient and genuine.  See Los Angeles Times article, A Ritualistic Bow From Toyota Chief.

Some say that C.E.O. Toyoda’s bow was not deep enough and was simply a ritualistic act.  Others also comment that a true apology would be used against Toyota in litigation.  Do these issues sound familiar?  They sure do to me.  This is a common theme in mediation. Whether to apologize?  How?  And whether it is genuine?

Another theme common in mediation is the following scene:  A person has committed a wrong several years ago.  Perhaps the person apologized “formally” at the time.  It was, however, unclear as to whether the apology at that time was genuine.  Enter the mediation.  Issues are being raised about the conduct several years ago and its ramifications.   How does the repenting person act.  Well, Mel Gibson gives us a great example of how not to act in that situation.

Here, Mel Gibson is asked about his anti-semitic remarks several years ago.  At first he appears remorseful.  But as you see in the video his conduct now is clearly not that.  There are several non-verbal and in between the message signs.  First, he states that he is the same person as he was then.  Clearly he is not distancing himself from that terrible event.  Second, he laughs at the question that he clearly understands in a nervous laugh when he asks for clarification.  Third, he states he has gotten over this “but clearly you haven’t.”

Further, he then states that he has done the “necessary mea culpas” as if there is a certain amount of apologies that can be made and then all is good.  This comment alone reflects his lack of remorse.  One of the things about violating people’s trust and then giving an apology, you cannot simply act as if the apology is ritualistic.  Take the same action and put it into other violations of trust.  For example, “Honey, I know I cheated on you several years ago, but I have said my necessary apologies.  You shouldn’t feel hurt today.”  His comment appears to reflect his true belief that he is not in fact sorry for his actions and that the apologies were simply formalities required to move on and keep selling movies.

Mel’s next action is also telling.  He picks up the cup of coffee and holds it in between himself and the camera as if to distance himself.  (How many times in T.V. interviews for movie promotions do you see someone drinking coffee while on camera?  Never).  Then, he turns away, and raises his thumb in a “yeah, yeah, whatever,” manner.

Then, the piece de resistance is Mel’s comment at the end.

Mel Gibson appears to the classic example of lack of remorse being shown for his indiscretions.  In mediation, many times a genuine apology can make the difference.  However, take Mel Gibson as an example of what not to do.

By the way, here is another interview with Mel Gibson by another reporter.  Does he appear remorseful to you?

By Steven G. MehtaSteve Mehta

A big question in trial for lawyers to consider is whether to apologize for their client’s “alleged” conduct.  Many lawyers are reluctant to do so under the theory that it could lead to a greater chance of liability being imposed on them.  Recent research sheds light on this issue.

According to researchers at George Mason University and Oklahoma State University apologizing to a jury may lead more favorable results. The results of the study will be available in a the journal Contemporary Accounting Research.

Assistant accounting professors Rick Warne of Mason and Robert Cornell of OSU found that apologizing can result in lower frequencies of negligence verdicts in cases when compared to a control group receiving no apology or remedial message. The researchers hypothesized that apologies allow the accused wrongdoer to express sorrow or regret about a situation without admitting guilt. Alternatively, a first-person justification allows the accused to indicate the appropriateness of decisions given the information available when decisions were made.

“We found that apologies reduce the jurors’ need to assign blame to the [wrongdoer] for any negative outcomes to the client,” says Warne. “It also appears that an apology “influences the jurors impression that the auditor’s actions were reasonable and in accordance with professional standards.”

The researchers conducted several versions of a mock trial involving a lawsuit against an auditor whose actions had negative consequences on a client. The researchers examined whether a defendant making an apology, offering a justification, utilizing both techniques or remaining silent led to the most favorable verdicts.

“We know victims often respond favorably to an apology, but our findings suggest that even unharmed jurors react in a similar manner,” says Cornell. “Offering an apology though is not synonymous with admitting guilt.”

The majority of states have some form of ‘apology law’ that prevents an apology from being used against a defendant as evidence in court in some setting or other. According to the researchers these laws encourage the use of apologies when disputes arise.

“Defense attorneys must consider several factors before having their client testify in court,” says Warne. “However, we believe that most innocent parties could benefit from utilizing the apology and justification strategies when legal conflicts arise.”

In my experience, apologies – and especially heartfelt apologies – can have a significant impact on resolving many emotional conflicts.  Given that the mediation setting is confidential, it is very easy for people to make an apology during mediation because such statements will remain confidential for legal purposes but have the desired effect of helping to reduce tension and deescalate a conflict.

Given that there is mounting research as to the effectiveness of these types of apologies as well as the financial benefits, an apology should be something to consider in litigation context.

See also, financial impact of an apology

George Mason University (2009, August 25). Saying ‘I’m Sorry’ Influences Jurors. ScienceDaily. Retrieved September 27, 2009, from http://www.sciencedaily.com /releases/2009/08/090824141049.htm

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