By Professor Richard Peterson, Director of the USC Gould School of Law Center for Dispute Resolution
Some years ago, a parent brought her eight-year-old daughter to her law school contracts class when child-care arrangements fell through at the last minute. The professor was discussing a dispute involving a vendor’s manufacture of defective “widgets” and the customer’s refusal to pay when delivery of the product was tendered. A discussion ensued about breach of contract, substantial performance, and the relative rights and obligations of the parties under the particular facts presented by the professor. In the midst of an engaging discussion about who was right and who was wrong, the professor asked the class what they would say to the customer if they were the vendor. Several students offered possible responses asserting substantial performance and arguing that the customer was obligated to make payment in spite of the defects complained of by the customer. The attentive child then raised her hand. The professor, not wanting to pass up an opportunity to hear what this young girl might have to say, invited her to answer the question. Confidently and without hesitation, she simply said, “I would say I’m sorry!”
Research and studies have provided convincing evidence of the healing power of sincere and appropriate apology, for both the giver and the recipient, in the processes of dispute resolution. [1] Nevertheless, in the context of legal disputes, apology is frequently avoided. In an article published in the Harvard Business Review, in September 2015 researchers referred to this reluctance to apologize as “The Apology Dilemma.” In explaining this conundrum, the authors provided the following obstacles restraining apology:
“Let’s recognize two facts about apologies at the outset: First we are psychologically predisposed to find reasons (or excuses) to delay or avoid saying we’re sorry. Apologizing feels uncomfortable and risky. There’s a loss of power or face involved – it rearranges the status hierarchy and makes us beholden, at least temporarily, to the other party…
“Apologies are even more difficult in an organizational context. When considering whether and how to apologize, even seasoned leaders become gripped by indecision.
“Second, companies have a strong tendency to evaluate the situation through a legal lens. Corporate counsel may fixate on whether any laws were broken and warn managers that an apology might be construed as an admission of liability (possibly exposing the company to litigation) rather than as an effort to empathize with the wronged party…Unfortunately, a litigious perspective has become ingrained in many organizations: Even a leader who isn’t actively consulting with an attorney may worry that an apology could create legal problems.”[2]
Sometimes there are legitimate reasons why apology is inappropriate in a legal dispute; however, I believe reasons for avoiding apology are frequently overstated. The potential for greater party satisfaction and healing in dispute resolution is too often lost by failure to understand the power of apology in resolving disputes.
A full discussion of this topic is beyond the scope of this article but an example of the powerful role apology may play in the process of resolving conflict is found in the out-of-court settlement of a claim made by the parents of MIT freshman Scott Krueger against the University, three years following his tragic death caused by alcohol poisoning at a Phi Gamma Delta “Animal House Night” hazing event in September 1997. This matter is highlighted in one of my favorite alternative dispute resolution textbooks.[3]
The facts underlying Krueger’s death made the dispute ripe for a hotly contested lawsuit, with parties aggressively competing to emphasize the strengths of their cases while exploiting the weaknesses of their opponent. The university’s legal team believed that the law favored MIT. The team believed that a university should not be held legally responsible for an adult student’s voluntary drinking and that, in any case, under Massachusetts state law, damages assessed against a university could not exceed $20,000.00. On the other hand, there was significant evidence that MIT was aware of serious problems with its alcohol policy years before Krueger’s death, and the $20,000 liability limit would not extend to individual MIT employees who failed to act on information and recommendations contained in a 1991 report by their own undergraduate subcommittee tasked with investigating the issue.
Despite any weaknesses that may have existed in the Kruegers’ claim against the university there is little question that, absent a settlement, they would have aggressively pursued justice for their deceased son through litigation. Litigation would, unquestionably, have been emotionally devastating for them, even if they ultimately prevailed and received monetary compensation. It also would have been an expensive and damaging road for MIT to traverse; legal defense expenses were estimated to be well into seven figures. The negative publicity, as well as the emotional toll on those who would necessarily be engulfed by the process, was incalculable.
You might therefore ask, “Why did this case take a different course? How were the parties spared the ugly consequences generated by what many believed was unavoidable litigation?” The answer lies in the exceptional leadership and judgement of MIT President Charles Vest and in the exceptional skill and judgement of the mediator, Jeffrey Stern. Vest was able not only to view the facts objectively but also had the foresight, courage and moral grounding to approach the problem much differently than might have been expected. Vest understood the importance of meaningful apology. Stern was credited with a masterfully facilitated process allowing for the kind of open and transparent communication necessary to meet the needs of the parties, especially Mr. and Mrs. Krueger.
Vest understood how litigation could exacerbate the harm caused by the incident to both the Kruegers and the institution he represented. “Once you’re in litigation, things polarize quickly,” Vest said in a post-settlement interview with MIT newspaper reporter Dana Levine. “If things polarize, there’s a disincentive to make change. … If you can bring people together, not in a court room … but face to face, you can get a lot more accomplished.”[4]
Vest then set in motion efforts to meet face-to-face with the Kruegers for the purpose of beginning a healing process. His intent was not to manipulate the feelings of Scott’s parents, nor were his efforts a pretext for reducing the amount of any settlement negotiated with them. There was no PR agenda. Vest sought an appropriate process and environment where all parties could share their thoughts and feelings and where he could offer a meaningful apology to the Kruegers on behalf of himself and MIT. It was decided that mediation provided the best option for these purposes.
Achieving Vest’s goals required involvement of an experienced and skilled mediator who understood the threshold task of creating trust and rapport with the parties, and the need to provide Mr. and Mrs. Krueger with an opportunity to unleash the pent-up anger and emotion accumulated over three years since the death of their son. Importantly, the mediator understood that mediation could provide the means for meeting this need. Stern facilitated the opportunity for the Kruegers to express their anger, both to him and to Vest. With respect to Stern, plaintiff counsel Brad Henry said that Stern’s greatest contribution was probably the way he responded to the Kruegers’ feelings:
“What he did most masterfully was to allow a lot of the emotion to be directed at him. He allowed it almost to boil over when it was just him with the Kruegers, but later he very deftly let it be redirected at the president and the university. … He also prepared the president for the onslaught. … Mediation can be like a funeral — especially with the death of a child. He mediated the emotional part of the case, and then let the rest unfold on its own.”[5]
After the Kruegers were afforded an opportunity to express their feelings uninterrupted, Vest proceeded to offer an effective and meaningful apology to them.
It is important to understand why Vest’s apology was meaningful and healing for the Kruegers. There are three essential elements of a meaningful apology. The first is a statement of regret for having caused the hurt or damage. “While your intention may not have been to cause harm, you recognize that your action or inaction nevertheless did hurt this person [or persons]. This regret needs to be communicated. This includes an expression of empathy with an acknowledgement of the injustice you caused.”[6] The second element is accepting responsibility for your actions. “This means not blaming anyone else and not making excuses. … For an apology to be effective it must be clear that you are accepting responsibility for your action or inaction.”[7] The third element is a statement of willingness to remedy the situation. “While you can’t undo the past, you can repair the harm you caused. Therefore, a meaningful apology needs to include a statement in which you offer restitution, or a promise to take action so that you will not repeat the behavior.”[8]
A description of an exchange between President Vest and the Kruegers during the mediation captures the emotional transformation that occurred in this dispute and exhibits Vest’s satisfaction of the first two essential elements of a meaningful apology as well as an intent to satisfy the third:
“The Kruegers vented their anger, first to Stern and later to the university president. ‘How could you do this?’ they shouted at him.’ You people killed our son!’ They also challenged him on a point that bothered them terribly: Why they asked him, had he come to their son’s funeral but not sought them out personally to extend his condolences? The president responded that he had consulted with people about whether to approach the Kruegers and was advised that, in light of their anger at the institution, it would be better not to do so. That advice was wrong he said, and he regretted following it.”[9] Vest went on to apologize for the role the university played in Scott’s death, saying these simple but powerful words, “We failed you, what can we do to make it right?”[10] Mrs. Krueger then cried out again until her husband looked at her and said, “The man apologized. What more is there to say?”[11]
Counsel for the Kruegers recognized the significance of the last sentence of the above dialogue. “There’s a moment … where the back of the case is broken. You can feel it. … And that was the moment this day.”[12] At this critical point, Vest was able to move forward with his apology.
First, Vest concluded that MIT was culpable in the death of Scott Krueger. It didn’t matter to him that there were legal defenses that could be asserted. He felt an obligation for the university to acknowledge its responsibility and for that responsibility to be communicated to the Kruegers, and he did so. Second, Vest communicated his substantial regret that the actions or inactions of the university caused the death of their son and, lastly, Vest communicated his intent and desire to provide a remedy for the injury and damages resulting from their actions or inactions.
As the mediation moved to the bargaining stage, the mediator focused attention on the interests of the parties rather than their positions. In litigation a court is usually limited to awarding monetary damages if liability is found against the defendant. Monetary damages follow the positional arguments of the parties, with plaintiff arguing for the award of a specific dollar amount and the defendant arguing that no damages should be awarded or, if any amount is assessed, it should be significantly lower than the amount sought by the plaintiff. The interests underlying party positions are not addressed.
In cases like this, however, monetary damages alone are unlikely to satisfy the needs and interests of the plaintiffs. The Kruegers did not want to feel as though their son died in vain. A significant need of the Kruegers was to effectuate change at MIT so that no other student would suffer the fate of their son. Additionally, monetary damages alone would not diminish their pain and sorrow without MIT’s acknowledgment of responsibility for the harm they experienced. Thus, the need for an unforced and authentic apology. A court of law could not provide these remedies, but MIT could.
In the end, a settlement was reached, which not only included compensatory damages of $4.75 million paid to the Kruegers but also an additional $1.25 million for a scholarship in the name of Scott Krueger and to be administered by his parents. Additionally, the agreement included several promises by MIT to fundamentally change student life. One of the most significant promises was that all freshmen would live on campus within two years of the agreement.[13]
So, what did the Kruegers and their attorneys have to say about the mediation process and the settlement achieved by the parties? Were the goals set out by Vest achieved? A news article about the settlement included a statement by Leo Doyle, counsel for the Kruegers, describing his perception of the meditation process:
“Dr. Vest is and was an extraordinary person at the face-to-face mediation. … What it came down to was people looking at each other sitting at the same table and expressing how they felt about what happened. The Kruegers were very direct and honest in how they felt, and Dr. Vest, to his great credit, didn’t duck and didn’t deny and accepted responsibility and apologized straight up to the Kruegers. Without that this case never would have been settled.”[14]
In the same news article, the reporter included comments made by the Kruegers. “Mrs. Krueger told the 35 news people that what made the agreement possible was ‘President Vest’s own commitment on behalf of himself as well as MIT to change something there; so did his admittance to the problems of their housing and alcohol policies and attempts to change that.’”[15]
In the article the reporter observed, “The Kruegers were impressed by Vest’s sincerity and his resolve to improve MIT’s residential system and alcohol policies.” Darlene Krueger was quoted as saying, “You can’t pretend to someone that you care like the way he acted that he cared.”[16]
Perhaps most important is how the Kruegers viewed the future after settlement was reached with MIT. In that regard Darlene Krueger said,
“Our son cannot be replaced. No agreement can replace him. But we hope colleges will address problems on their campuses and that parents will be more aware of problems before something happens. … We don’t know our exact future plans. I know I’m not going to consume the rest of my life with what has gone on. There has to be some end, and some finality to what went on with my son. He will live with us forever but we can’t continue to pursue things on behalf of what has happened in the past. We have to go on with life.”[17]
She said, “After our meeting with Dr. Vest face to face, we believe that if it’s within his power things will be changed, because he was very sincere to us and we believe him.”[18]
Through this example and others like it, our students come to realize the transformative power of meaningful apology and how they, as dispute resolution professionals, can facilitate the application of these principles as they engage with people looking for a path out of conflict and the otherwise destructive processes often associated with dysfunctional efforts to resolve them.
[1] Donna L. Pavlick, Apology and Mediation: The Horse and Carriage of the Twenty-First Century, Ohio State Journal on Dispute Resolution, [Vol18:3 2003] See also, Witvliet, Luna, Worthington and Tsang, Apology and Restitution: The Psychophysiology of Forgiveness After Accountable Relational Repair Responses, Frontiers in Psychology, March 2020, Volume 11, Article 284; Lee Taft, The Commodification of Apology, The Yale Law Journal , Mar., 2000, Vol. 109, No. 5 (Mar., 2000), pp. 1135-1160 Published by: The Yale Law Journal Company, Inc.
[2] Schweitzer, Brooks, and Galinsky, Managing Organizations, The Organizational Apology, Harvard Business Review, pp. 44-52, September 2015
[3] Folberg, Golann, Stipanowich and Kloppenberg, Resolving Disputes – Theory, Practice and Law, Third Edition, Walters Kluwer, 2016
[4] Dana Levine, The Tech, Friday September 15, 2000
[5] Resolving Disputes, supra at 264-65
[6] Beverly Engel, The Power of Apology, Healing Steps to Transform All Your Relationships, John Wiley and Sons, July 19, 2002.
[7] Beverly Engel, The Power of Apology, Healing Steps to Transform All Your Relationships, John Wiley and Sons, July 19, 2002.
[8] Beverly Engel, The Power of Apology, Healing Steps to Transform All Your Relationships, John Wiley and Sons, July 19, 2002.
[9] Resolving Disputes, p. 264
[10] Resolving Disputes, p. 264
[11] Resolving Disputes, p. 264
[12] Resolving Disputes, p. 264
[13] Dana Levine, The Tech, Friday September 15, 2000
[14] Sarah H. Wright, Face-to-Face Meeting Leads to Settlement, MIT News, September 20, 2000
[15] Sarah H. Wright, Face-to-Face Meeting Leads to Settlement, MIT News, September 20, 2000
[16] Dana Levine, The Tech, Friday September 15, 2000
[17] Sarah H. Wright, Face-to-Face Meeting Leads to Settlement, MIT News, September 20, 2000
[18] Sarah H. Wright, Face-to-Face Meeting Leads to Settlement, MIT News, September 20, 2000
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