Asking for an Apology

One of the more bizarre items in the news last week was the revelation that Virginia Thomas, wife of U.S. Supreme Court Justice Clarence Thomas, had phoned Anita Hill, requesting an apology. Nearly twenty years ago Anita Hill testified against Clarence Thomas during his Senate confirmation hearing, accusing him of workplace sexual harassment. I was an undergraduate at the University of Toronto at the time, and remember the incident and the debates it provoked very well. The news of Mrs. Thomas’s early morning telephone call to Hill’s office made me think about the nature of apology, and in particular about the dynamics of requesting an apology.

Apologies are an example of what philosophers call “speech acts” In a speech act, one does more than just say something; one performs an action at the same time. There is something deeply mysterious about speech acts. Saying “I’m sorry” or “I promise” or “I forgive you” might seem like little more than uttering a phrase. Yet it is clear that someone who speaks one of these phrases has done something more than make a verbal utterance, although they have done that as well. Someone who says “I’m sorry” acknowledges that their previous conduct has harmed another and that they regret this. Someone who asks for an apology asks not just for a string of words to be spoken, but that another party acknowledge and regret an injury against them. The power of this acknowledgment is such that we tend to be very upset when we suspect that an apology is made insincerely. We don’t like it when a speaker seeks the recognition of making an apology without doing the hard work of examining his or her conduct and thinking about what it would meant to atone for it.

Asking for an apology means telling another person that their conduct has been hurtful, and this can be very difficult to do. Yet if one doesn’t request an apology, the other person may never understand the effect that their words or actions have had. The person who feels that he deserves an apology yet fails to ask for it may continue to feel hurt and resentment toward those who have injured him. If an apology is requested and granted, there is a chance that the relationship between the parties might yet be repaired. Parties in mediation may want an apology as much as they want other forms of restitution. Many people choose mediation over other forms of dispute resolution precisely because they expect to have an ongoing relationship with the other party, and mediation can actually help strengthen relationships.

If asking for an apology is sometimes the right thing to do, what was it about Mrs. Thomas’s request for an apology from Hill that struck many as unseemly? The first and most obvious answer is that it is far from clear that Hill owes anyone an apology. She stands by her testimony. Second, if she does owe anyone an apology, it isn’t Mrs. Thomas. While there may be special circumstances in which one may ask for an apology on behalf of another, this doesn’t seem to be one of them. If Justice Thomas feels he is owed an apology he is capable of asking for one himself. But some additional considerations are also important here. Asking for an apology is a gesture towards repairing a relationship. If you’ve hurt me and I tell you, you can make things right by apologizing, then maybe we can be friends again. However the way in which Mrs. Thomas asked for an apology is at odds with the goal of restoring a relationship. If you want to repair a relationship with another person you may have to face them directly, as difficult as this might be. Sneaking around and telephoning when the other person is almost certain to be unavailable is not the way to begin to mend a relationship. What we say is important, but the way we say it, and the circumstances in which we say it, may be equally as important.

Is "Mandatory Mediation" an Oxymoron?

One of the first principles impressed upon us in mediation training was that mediation is a voluntary process. The parties in a dispute come to mediation voluntarily and may leave it when they desire. But in several jurisdictions, including Ontario, mediation is now mandatory for certain types of civil disputes. What are the consequences when a process that is thought to work best if voluntary is made compulsory?

First, it should be noted that the regulations in Ontario commit disputants only to a good-faith attempt at a mediated solution. There is no requirement that a settlement be reached. Ideally, in mediation, there should be no pressure on disputants to accept a settlement that they do not feel is in their best interests. (That is why the ADR Institute of Canada Code of Conduct specifies that mediators must not base their fees on whether a settlement is reached, or the amount of any settlement. The mediator should not have a financial interest in getting either party to accept a settlement.) If mandatory mediation fails to resolve a dispute, then the parties involved meet again in court. The fact that mediation was attempted and failed is not supposed to be held against them.

Mandatory mediation has definite drawbacks. Mediation’s distinctive character may be compromised as it becomes more and more a part of the “official” system. People compelled to mediate may not be as motivated to make a real attempt to solve their dispute. They might feel less of a sense of ownership in the process and in any resolutions that come out of it. And as most mediators will tell you, mediation isn’t appropriate for every dispute or for every individual. If someone wants to maintain a reputation for never settling disputes out of court, or to establish a legal precedent, the only way to do so is through litigation.

My own view is that the disadvantages of mandatory mediation are liable to be over-stated. The fact that a process has been mandated by the courts does not mean that it is doomed to fail. Indeed, mandatory mediation of civil cases in Ontario has a decent success rate, with over half of the disputes settled or at least partially settled. The relationship between voluntary action and commitment is probably more complicated than we realize. After all, people voluntarily enter into marriages that they later voluntarily leave; they voluntarily quit jobs that they have voluntarily taken on. A good mediator will try to overcome disputants’ resistance to the process, and help them see that giving the mediation process a try is probably in their best interest.

There are good reasons to favour mandatory mediation, at least for some kinds of conflicts. If a dispute can be settled out of court, the costs are likely to be significantly less, both for the parties involved and for society as a whole. It is easy to forget that the administration of the legal system is a cost borne by all taxpayers, not just those involved in disputes. Mandatory mediation might increase awareness of mediation, so that people come to think of mediation as a way to solve disputes even before they consider going to court. Finally, parties in mediation are working together to solve their disputes; parties in litigation are adversaries. A little more cooperation and a little less antagonism might be better for everyone.

A Challenge to Confidentiality in Mediation?

Confidentiality is a basic principle of mediation. But what is to be done when it is used as a weapon in a dispute? This is the question that judges in California will have to decide.

The case at issue is the high-profile divorce of Elon and Justine Musk. Mr Musk is one of the founders of PayPal, and a very wealthy man. The couple have five children, and the main point of disagreement yet to be resolved is the level of support to which Ms Musk is entitled. Their dispute hinges on a post-nuptial agreement that Ms Musk signed in the early days of the marriage, and which she describes as “very harsh.” The agreement was reached by mediation, and so the negotiations leading up to it are confidential. At the same time that the couple was negotiating their agreement, Elon Musk was also in talks regarding the merger of his company X.com, which eventually became PayPal. The merger raised the value of his stocks in X.com by millions of dollars more than was reported in the post-nuptial agreement. It is not clear whether this was an oversight or a deliberate omission.

The fact that the agreement was signed after the couple married is significant, as married couples have a “fiduciary duty” to one another to be honest in their financial dealings. Lawyers from Ms Musk have charged that Mr Musk violated this fiduciary duty. His lawyers have argued that, since the agreement was mediated, and therefore confidential, Ms Musk has no right to challenge it. In order to defend himself against the charge of fraud Mr Musk would have to discuss his actions during the negotiation, the very period which is subject to confidentiality. In July, when lawyers for both sides presented their arguments before the court, the judge praised them for “excellent lawyering,” declared a “non suit,” and certified the case for appeal. A verdict from the California Court of Appeal could take a year or two. The two underlying legal principles in the case – mediation confidentiality and marital fiduciary duty – have not before been set in opposition to one another.

Reading about this case, I was reminded of the old adage that, “hard cases make bad law.” Confidentiality is important to mediators and to many other professionals, for a variety of reasons. Some of the reasons for mediation confidentiality are instrumental; that is, the presumption of confidentiality helps mediators to get parties in a dispute to speak frankly, and this is turn helps to keep negotiations focused on the parties’ interests. In this way mediation confidentiality is similar to the confidentiality between lawyers and their clients. A full and frank disclosure helps lawyers to present the best possible defense. Yet there are also intrinsically moral reasons for the presumption of mediation confidentiality. Parties in a dispute are entitled to their privacy and the right not to have sensitive information disclosed by third parties. In this way, a mediator’s duty to respect confidentiality of parties in a dispute is similar to the duties of confidentiality observed by doctors and therapists.

Justine Musk has harsh words for mediation. She writes: “When someone hustles you into mediation, and you yourself are a loving trusting naif without any business or financial experience who has never heard the word ‘mediation’ before, they can basically rape and murder you (figuratively speaking, of course) and get away with it, because it's all confidential.” Reading her account of these events (both in her blog postings and comments, and in the October 2010 issue of Marie Claire), I was left with many unanswered questions. The negotiations began before the couple were married, and Ms Musk gives the impression that the lawyer who mediated the agreement was engaged by Mr Musk. (The ADR Institute of Canada National Mediation Rules prohibit a mediator from acting for any of the parties individually, unless all of the parties consent after full disclosure. Mediators are supposed to be independent and impartial.) Neither is it clear whether the couple’s mediator advised Ms Musk to seek independent legal advice.

Whatever the outcome of this dispute, mediators in California and elsewhere will be eager to hear the judges’ decision and their reasoning.