There are situations where our humanity, assuming attorneys are still humans, cries out for an apology. Yet they are seldom used in settlement negotiations even when they might assist to resolve the matter. Perhaps we are afraid of the statement being used against our client in case the matter doesn’t settle at mediation?
That concern is unfounded. Nevada Revised Statute 48.109 protects communications made during a mediation from discovery or admission in court. “[N]o admission, representation or statement made during the session, not otherwise discoverable or obtainable, is admissible as evidence or subject to discovery.” NRS 48.109(2). Further, a mediator cannot be forced to disclose “any matter discussed during the mediation proceedings.” NRS 48.109(3).
Apologies can provide important closure and validation to victims. In situations of clear liability, there seems to be little risk and great value in offering an apology. One study followed matters where there was clear liability but insufficient insurance to make a victim whole. The study tested whether an apology would make a difference to settlement and asked whether the plaintiff would settle for less than the perceived value of their case if the other party offered an apology. The results are instructive and suggest we should consider using apologies more often and more strategically.
In situations where the liable party offered a full apology—“I am sorry, it was my fault,” 73 % of plaintiffs accepted the offer. When offered the same amount of money with no apology, only 53% of plaintiffs accepted the offer. Where the defendant offered a partial apology, including an expression of benevolence and caring, but not acceptance of responsibility.—“I am sorry that you are in such pain,”—only 35% of plaintiffs accepted the offer. In other words, the partial apology was worse than no apology at all.
Where liability is clear, a full apology by the defendant can make all the difference to the victim and to the prospect for settlement. A good apology must:
- Acknowledge the wrong in a meaningful way, showing you take ownership of responsibility for the impact of your actions;
- Show genuine emotion; and
- Make a plan to correct the wrong, if possible.
Michael Watkins, Regret, Remorse, and Plans for Redress: The Role of Apologies During Mediation, https://www.yorku.ca/osgoode/jib/2023/05/15/regret-remorse-and-plans-for-redress-the-role-of-apologies-during-mediation/.For further information on the correct way to offer an apology, consider Deborah L. Levi, The Role of Apology in Mediation, 72 NYU Law Review 1165 (Nov. 1977).
Hon. Jay Young (Ret.) is a retired judicial officer with decades of experience presiding over complex civil litigation matters. Following a distinguished career on the bench, Judge Young now serves as a mediator, arbitrator, and court‑appointed special master, and discovery referee. Judge Young brings a disciplined, impartial, and results‑oriented approach to dispute resolution. Judge Young is based in Nevada and accepts appointments statewide and nationally, subject to agreement or court order. He can be reached at 855.777.4557 or info@armadr.com
Known for judicial temperament, analytical rigor, and practical problem‑solving, Judge Young assists litigants and counsel in resolving high‑stakes disputes efficiently and with integrity and employing best practices. He is recognized by U.S. News and World Report’s publication Best Lawyers as Arbitration Lawyer of the Year.
I stay conscious of that human factor in the law. My undergrad degree in public relations from BYU primed me for it with a not in the textbook case study. Then somewhere in the California Western School of Law coursework, the same idea came up probably three times. Give dignity to your opponent, and remember the utility of getting dignity to your client. Sometimes both sides deserve and owe apologies.