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.
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