Can an apology help to prevent and settle employment litigation?

Can saying “We’re sorry” help to resolve employment disputes?

Diane Curtis, writing for the California Bar Journal, reports on the emerging role of apology and disclosure in preventing and settling legal disputes:

University of Illinois law professor Jennifer Robbennolt has done a series of studies that show apologies can help resolve legal disputes in cases ranging from medical malpractice and divorce and custody to disputed dismissals and personal injury. “Conventional wisdom has been to avoid apologies because they amount to an admission of guilt that can be damaging to defendants in court,” says Robbennolt….“But the studies suggest apologies can actually play a positive role in settling legal cases….”

What about employment disputes?

In dispute resolution, apology and disclosure most often are associated with areas such as medical malpractice litigation and criminal justice.  The stakes in these disputes can be very high, involving strong emotions, fatalities or significant injuries, and (in civil cases) considerable dollars.

You don’t hear much about apology and disclosure in the employment context.  Instead, even when it’s clear that a wrong has occurred, not infrequently organizations will (1) try to discourage someone from filing a complaint; (2) retaliate against the complainant; (3) admit no wrongdoing, even in a settlement; and/or (4) insist that the terms of any settlement be sealed.  And while no ethical lawyer will counsel retaliation against an employee, the other three tactics are completely within commonly accepted notions of an attorney’s obligation of zealous representation of a client’s interests.

As a result, there often is very little sense of reconciliation between the employee and employer.  Even those workers who are successful at negotiating a decent settlement are left feeling beaten up and betrayed by the process.  Bonds are shattered rather than repaired. From a psychological standpoint, outcomes are often extremely unhealthy.

Why not?

It would take considerable reworking of the commonly assumed role of an employer’s lawyer to encourage, when appropriate, apology and disclosure as a healthy approach toward resolving employment disputes.   Right now, too many management-side lawyers assist their clients in creating a public fiction: We do no wrong — never, ever.  However, is it possible that a different turn will lead to less litigation, less contentious dispute resolution, and — ultimately — better employee morale?

Hat tip: Cutting Edge Law

3 responses

  1. I have read this interesting article about the “Apology” and especially in a workplace litigation case which I had recently with a former employer. I held a senior management position and over a period of 12 months plus I was the subject of intense and sustained bullying by my CEO. the whole process got very nasty as he flexed his power over me and keeping all his senior directors on his side. I got no support from anyone in the company during this very painful process that ended up in a severance deal.

    One interesting part of the process in trying to find a compromise agreement with the company, was when I suggested an apology may go a long way towards resolving the complex matters of the bullying and grievance I took.

    I was not surprised to learn from my legal team that an apology was not going to me offered to me under any circumstances as this would be seen as admission of guilt that could compromise the company further if the case was to be taken all the way to unfair or constructive dismissal.

    I was prepared go accept an apology at the time, however as there was not a chance this would be made to me, it only deepened my determination to get what I could by way of financial compensation from them.

    The whole process cost the company a lot of money and left a deep bitterness between us all who were at one stage very good working colleagues.

    Power/Bullying is a most serious problem in the workplace at all levels and I feel so sorry for people who are stuck in it. I am thinking about studying the topic and getting involved in helping out others who are the subject of it

    • Paul, I’m sorry that your own experience so aptly illustrated how many bad feelings could’ve been avoided and all the time & expense that could’ve been saved. I appreciate you sharing this with us.

      • Thank you for acknowledging my post David. I suppose the main reason for me sharing this was that even the most basic of human decency like making an apology for a wrongdoing was refused. I was so effected by this that I had to take my grievance all the way as far as possible to get “justice” so to speak. I technically won my case as I got a severance as my only option was to get away from the company, and loose what was a secure senior position. The feeling of winning was short lived as the reality of finding myself jobless hit hard.

        An apology would have worked for me, could I trust the person who bullied me…? no but I would have accepted and apology and moved on keeping my guard up. I don’t think bullying cases really ever have a good ending, and I have no doubt the costs to any company or organisation will be immense, the human cost is a lot more serious as trust in others is shattered.

        I have moved on now thank god but my experience with this matter will never leave me.

        Hope my small contribution helps others..who may have found themselves in a similar position


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