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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


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

Recently, I read a blog post regarding attorneys coercing their clients to settle a case. On Victoria Pynchon’s blog, Settle It Now.  This made me think about the issue of buyers remorse that can happen in mediation and how to avoid the issue.

This is an important issue there are known cases of clients suing attorneys (or the other side) after having settled the case. For example, Joe Francis of Girls Gone Wild sued to rescind the settlement.

As a litigator and as a mediator I have heard comments that have made me feel that the client had buyer’s remorse in some way or other.  Sometimes, a client will ask, “did I do the right thing?” or “did I get a good deal?”  Other times, they will outright say, “I shouldn’t have done the deal.”

The reality is that buyer’s remorse happens in some level in many aspects of life.  Purchase of personal items, electronics, home sales, and the list goes on.  I recently bought a camera and had buyer’s remorse the moment I was using the product.  Did I pay too much?  Should I have bought a lesser camera that cost less?

First, why does it occur?  According to research, people are poor at predicting the true state of their emotions.  Second, buyers’ remorse attaches to people’s self confidence about the decision.  Often times, mediation and litigation is a foreign environment and the clients fear that they may have made the wrong decision because of lack of knowledge.  Buyer’s remorse can also be caused or increased by worrying that other people may later question the settlement and claim to know better alternatives.  Another common cause of buyer’s remorse comes from talking to family members and friends, who may mean well, but aren’t happy with the settlement.  Often these people will say things like I could have gotten better, or John got double that amount for his case.

It is important to understand that buyer’s remorse is an emotional response to a serious decision.

Steps to Take To Help Eliminate Buyer’s Remorse.

First, in these difficult situations, everyone has a lack of confidence.  Now add on whatever insecurities the person generally feels.  That is the recipe for Buyer’s Remorse.  However, buyer’s remorse can be considered a symptom of the need for confirmation – confirmation that the person made a good decision.  In mediation, invariably you will see people who need confirmation that the decision they made is a good one.  In fact, I have had people directly ask me, “have I made a good decision?”

Once that person receives some conformation from others, the buyers remorse disappears.  As such, after the deal has been put to paper, you can help boost the client’s confidence by giving them confirmation that the deal is a good one. You can’t control what other people will say about the deal, but you can control what you say.

Here are some suggestions to help give your client confidence.

First, build trust and rapport with the client from early on in your relationship.  This way when it comes time to making the decision, you already have their confidence.

Second, do not start confirming the sale until the deal is finalized. If you confirm too quickly, the client will only consider that as pressure from you to make the deal.

Third, personalize your confirmation to you.  Don’t just say, “you got a good deal.”    (Although that is not a bad start) Say “I know that you got a good deal.”  Personalizing the comment to you identifies your confidence into the deal.

Fourth, confirm the benefits of the deal.  “Now you don’t have to have your deposition taken.”  “You don’t have to worry about the trial during the holidays.”  Reinforce the decision with the benefits of the settlement that makes it a good decision.

Fifth, congratulate the person on a deal.  Have you ever gone to an auction?  After the buyer has bid up an extraordinary price for the piece of art, the seller congratulates the bidder and everyone applauses.  This is simply a tool to help avoid buyer’s remorse.  Do the same thing after the settlement.  Call the person a few days later, and congratulate them again.  Your call can often eliminate buyer’s remorse before it gets a foothold in the client’s mind.

Sixth, ask the client for a favor such as asking them to pop by when they are in the neighborhood.  By doing so, you have also implicitly stated that you are confident in the decision and that you are not afraid of meeting them after deal is done.

Finally, let the client know that she is not the only person to have feelings of buyer’s remorse.  Simply letting her know that she is not alone will help her feeling of remorse.  She will know that this feeling is normal.  Explain that her feelings are so common that there is a name for that moment: It’s called Buyer’s Remorse.

Buyer’s Remorse is a common feeling in mediations.  The more you prepare your client for the feeling, the better you will have a chance to avoid the legal implications of having a client unhappy with a settlement.

Steve’s Book

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