Last week I read a good post by US mediator Jan Schau about the power of a genuine apology in a mediation.  She said, quite rightly, that an apology which is not perceived as genuine can do more harm than good.  Anybody who has listened to the pre-recorded message of “regret” for yet another delayed commuter train will know exactly how this feels!

So what makes an apology genuine?  Or maybe more importantly, what will help it be perceived as genuine, whether it strictly is or not.  I do not advance for a moment the theory that since in an apology sincerity is everything, you should concentrate on faking that convincingly.  However, the fact remains that if you do not come across as genuine in your mediation, whether you actually are or not will not matter.  

Ms Schau set out five pointers to making your apology genuine:

(i)         A verbal acknowledgement – the actual words “I am sorry“;

(ii)        an acceptance of responsibility without disclaimer or excuse;

(iii)       some offer of restitution (“I am going to make this right by …”);

(iv)       evidence of your learning from the experience; and

(v)        a request for forgiveness in some shape or form.

As Ms Schau accepts, however, this is much harder to get to than one might hope.  The words have to be said, but they are little or nothing without the appropriate body language and, as importantly, the correct timing.  In a mediation, for example, it may be very important to the aggrieved party to have his say and he may regard too early an apology as a deliberate attempt to pull the rug on this, to deny him the chance (but not the need) to get his views off his chest.  This will particularly be the case if, once the apology has been given, the other party clearly considers that nothing more need be said. 

It must also be noted that apologies “without disclaimers or excuses” are tough to expect, especially in workplace disputes where there are potentially many layers of legal and moral responsibility. The person tendering the apology may feel very strongly that he/she is entitled to one also, and/or that the receiving party’s upset is invented or over-stated or shows him/her to be wildly over-sensitive.   There may have been some provocation which explained the out-of-character response, at least in part, and the person offering the apology is bound to want to rely on this.  In those cases there is little chance also of a meaningful offer of restitution and a mediator who pushes a party too far on this may risk losing that person’s buy-in to the principle of some form of acknowledgement and maybe to the mediation altogether.  Especially in workplace mediations, one party may regret causing the other unhappiness but that does not mean at all that he/she would not do the same again next time.  The phrase “I am sorry if I upset you” contains in the “if” some in-built scepticism, so it will rarely be as effective as “I am sorry that I upset you“.  However, the acknowledgement of the distress as a fact will stick in the teeth of someone who believes the distress to be untrue or unnecessary or who fears being sued for it.  An offer of restitution, even if it is genuinely warranted, will always feel like an admission, and despite the privileged bubble in which the mediation takes place, that is often a step too far. 

Ms Schau queries whether an apology must be spontaneous to be effective at a mediation, or whether the parties can usefully be coached and brought together specifically for that purpose.  I don’t think it matters too much.  Spontaneous won’t work if the apology is made without sincerity or in an overt attempt to brush away a difficult conversation.  Equally, a slower coaching approach, though superficially less convincing (“why are you only telling me this now?”), may be effective if it helps one or both parties realise that an apology might be appropriate in the circumstances, or where one party initially lacks the skills or words to say sorry in a manner which does not look forced or grudging.

I am less convinced by the requirement of a request for forgiveness.  To some extent this is implicit in any apology, but I would be very hesitant to encourage or coach any party to a mediation to make it express.  The problem is two-fold.  First, a request for forgiveness is even harder to make convincingly than an apology when you don’t mean it.  Second, it is to some extent a further imposition on the person wronged – “not only did I upset you in the first place, but now I want you to help me feel better about that”.  Forgiveness may or may not come over time, but I do not think it can be done “to order” and would not recommend that it be sought.

So I think the position is at the same time both simpler and more complex than Ms Schau’s five points.  More complex because perceived genuineness is only part of the picture.  Simpler because it takes some courage to express a real apology face-to-face in a mediation and we should perhaps not examine the form of the thing too closely.  If it feels right, it probably is.   

And finally from me for 2014, thinking of delayed commuter trains, my personal congratulations to London’s Thameslink for the sheer time and effort it must have invested in order to take a service like First Capital Connect and replace it with something worse.   Well done, chaps.  Now if you could just work on (ii), (iii) and (iv) above, we might be getting somewhere.