The Role of Apologies in the Settlement of Civil Disputes

University Of Missouri-Columbia, Columbia MO

Investigators

Abstract

Even though it may be appropriate to offer an apology to a person who one has injured, it is often said that U.S. legal culture discourages apologies due to fears of legal liability. In recent years, however, several legal commentators have suggested that defendants in civil lawsuits should be encouraged to apologize to opposing parties. Proponents of apologies in civil litigation believe that apologies will, among other things, avert lawsuits and promote settlement, while providing greater satisfaction to injured parties. Despite this speculation, there has been very little empirical exploration of the ways in which apologies might affect legal decision-making in civil cases, the boundary conditions on any such effects, or the mechanisms through which such effects might occur. This project consists of three studies designed to explore the responses of legal actors to apologies in the context of a civil case. The research examines the role of apologies in settlement negotiation, examining whether and under what conditions apologies increase the willingness of injured parties to engage in settlement talks or the likelihood a settlement offer will be accepted, and the ways in which apologies influence the underlying attributions that may facilitate settlement. The first two studies focus on "safe" apologies, apologies that merely express sympathy for the injured party but do not admit fault, or apologies that are protected by an evidentiary rule. By asking individual participants to take the role of injured parties (Study 1) and attorneys to take the role of their attorneys (Study 2) in hypothetical situations, these studies investigate the influence of "safe" apologies on the settlement decisions of these potential litigants and their attorneys. The moderating effects of the severity of the injury and the evidence of the defendant's fault are also examined. The third study focuses on "compelled" and "delegated" apologies and how civil litigants' interpretations and settlement decisions are influenced by apologies offered under pressure from the injured party or a third-party (such as a mediator or a judge) or offered by proxy (i.e., via an attorney). A secondary goal of this project is to acquire a picture of attorneys' current practices and attitudes with respect to apologies. While it is the intuition and experience of legal commentators that apologies are rarely considered by attorneys, let alone offered, no systematic data has been collected about 1) whether they have or would advise a client to apologize and under what circumstances, 2) their reactions to the new statutes protecting apologies, or 3) the barriers they see to apologies in civil litigation. Therefore, attorney participants are also surveyed about their current practices and approaches. The project informs psychological theories of apology by improving understanding of the effects of apology on judgment and decision-making, the factors that moderate these effects and the mechanisms by which such effects are mediated. The project also enhances the practice of law by helping to educate practitioners and practitioners-to-be about the uses of apology in civil litigation, and informs legal reform by examining the potential effects of the emerging statutory protection of apologies.