Sorry: the hardest word

A Civil Mediation Council questionnaire in February 2021 did prompt me to consider the value of the apology in context of mediation.

Time and again we see the value of a concession - it need not be an admission of liability but can be an expression of regret that the dispute has reached this stage; an indication of the stresses of litigation; a desire to have found a different outcome or of an earlier resolution. It is not, as seems to be so often the case in litigation, an indication of weakness to be exploited. It is an indication of strength, a sign that a party has considered and has a settlement strategy, that it has considered the value of the “concession” to the other side and the “cost” of making the concession on its own part.

The reality is that an appropriate “concession” rarely has a significant cost but the benefit to the search for resolution of the dispute is that it takes the matter beyond the adversarial process of litigation. It can humanise the process because it acknowledges the challenges and stresses of the dispute to the other party and in so many instances causes that party to review its approach, to consider other outcomes and to move away from the mentality of adversarial litigation to consider the possibility of mutually beneficial solutions.

The Questionnaire mentioned above is raised in the context of s2 of the Compensation Act 2006 which provides that:

An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.

Is that sufficient? Why is it still so difficult for “sorry” to be offered from one party to another in a dispute? Many books, learned articles and no doubt “posts” have been published considerably more erudite than the 244 words above but I posted this to assist my Civil Mediation Council colleagues with their deliberations. Your thoughts / experience / observations are…….

Posted to LinkedIn on 17/2/20