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| Jennifer Egsgard |
An authentic and fulsome apology, unlike the one above, can be a very powerful tool in mediation. It can allow a person who is feeling hurt and aggrieved know that their experience is understood and regretted, which sometimes removes settlement obstacles that legal argument alone cannot dislodge.
For counsel preparing clients for mediation, it is always helpful to consider whether a genuine apology might be appropriate and assist in achieving resolution.
Many disputes are not only about money
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If that dimension is left unaddressed, negotiations can stall even where the legal analysis is strong. In my mediations I have seen properly structured and authentically delivered apologies materially shift negotiation dynamics from both parties, often loosening logjams and clearing the way toward settlement.
How apologies can be facilitated in mediation
As a mediator when I sense that an apology may assist in resolving a dispute, which usually happens when things are well under way, I raise it cautiously. First, I ask the potential giver privately whether they are willing. If not, I do not pursue it as a reluctant or insincere apology can be more destructive than productive.
If the apology giver is open to it, I ask the other side whether they are open to receiving one. Only if both agree do we proceed. I then provide the elements of an effective apology, described below, to the giver and invite them to prepare a draft which we review together to ensure it strikes the right tone.
Where appropriate, I bring the parties together during the mediation for the apology to be delivered face-to-face. The moment is often significant, and sometimes emotional, with a palpable shift in the room’s dynamics. Depending on the case, the parties may stay together longer, or retreat to caucus. I have found that after an apology is received, both parties are more open to the other side’s perspective and stalled negotiations generally start to move.
What makes an apology effective
An effective apology is more than just saying “sorry.” In fact, numerous studies have been done to determine what makes an apology effective, in the sense that they are accepted by the recipient.
A useful framework appears in Sorry, Sorry, Sorry: The Case for Good Apologies by Marjorie Ingall and Susan McCarthy. The essential components include:
- Saying you are sorry.
- Clearly identifying what you did.
- Demonstrating understanding of the impact.
- Offering explanation if necessary, but no excuses.
- Confirming it will not happen again.
- Offering to repair the harm.
- Listening to the response.
While the elements of an apology sound easy, in fact apologies can be hard to do. As the authors Ingall and McCarthy say, “Apologizing means letting your best self crash through the wall of your defensiveness…” – which perhaps is why apologies are so impactful.
Confidentiality and legal protection in Ontario
Ontario’s legal framework makes apologies a viable strategic option.
First, mediation communications are generally confidential and inadmissible by operation of contract and law. That protection allows parties in mediation to speak candidly without fear that an apology will later be used publicly or in court.
Second, Ontario’s Apology Act, 2009 provides that an apology does not constitute an admission of fault or liability and is not admissible in civil proceedings as proof of liability.
For counsel concerned about exposure, this statutory framework is significant. A client can acknowledge harm without undermining its legal defence.
Considerations for counsel
Before mediation, counsel may wish to consider with their client:
- Is there a relational or reputational element driving this dispute?
- Would acknowledgment of impact help either side move toward resolution?
- Is your client capable of receiving or delivering an apology that is authentic?
Beyond submissions
Mediation is a legal process, but it is also a human one. Parties arrive with pride, narrative and emotion alongside their financial models.
Not every case is appropriate for an apology, and a sincere apology will not resolve every dispute. In the right case, however, particularly where even subtle personal harm is present, a structured apology can become an important part of the path toward settlement.
Jennifer Egsgard mediates commercial, employment, intellectual property, tort claims and other disputes. Her approach draws on insight from 18 years of Ontario legal practice and an exclusively mediation-focused career since 2019. A Harvard-trained mediator and Distinguished Fellow of the International Academy of Mediators, she brings perspective, preparation and persistence to every dispute. www.egsgardmediation.com. Subscribe to her newsletter, The Mediation Brief, or contact her via email here.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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