Whether it happens informally on the telephone or in a more formal face-to-face meeting, the beginning of a negotiation can be critical to its success. First words and impressions are lasting; if you get off to the wrong start, it can erode trust, dampen optimism about the outlook for settlement, and increase the probability of deadlock.
An apology is not only a potentially powerful moral act, but it can be a powerful tool in deterring or settling a lawsuit. This power was described in a recent California Bar Journal article, which discussed how actor James Woods backed off his hard-line refusal to settle with the hospital where his brother died after a heartfelt apology from the hospital’s president.
By contrast, a botched apology can exacerbate the conflict and become itself the subject of conflict. It is thus extremely important that any attorney considering a client apology as part of a case resolution understand some of the attributes of a well-executed apology.
When trying to settle a legal dispute, it is often helpful to move away from a discussion of who was right and who was wrong, either in relation to the law or the parties’ underlying conduct. Arguing about who is right and who is wrong is useless when there’s no judge or jury to declare a winner. And, as a practical matter, it is extremely unlikely that one side will convince the other to accept its legal position wholesale—no matter how correct or persuasive that position is.
So, what do you focus on instead?