Apology subverted: the commodification of apology.

AuthorTaft, Lee

We are living in a time in which extraordinary, public acts of contrition have become commonplace, so frequent that one pundit describes the atmosphere that pervades our culture as "apology mania."(1) As citizens of the United States we have been witnesses to our President's evolving apology in the Monica Lewinsky scandal, a tawdry affair that led to his impeachment in the House of Representatives. The public sphere overflows with discourse about President Clinton's apologies; his first attempt at expressed contrition was viewed as woefully inadequate and his later attempts condemned by many as insincere and politically driven. What a literature search reveals as a topic previously rarely considered has now become a national conversation. Against this historic backdrop, I join the conversation. Here I examine apology and, more particularly, the role of apology in the context of civil mediation.

Apology is not a stranger to the law. In fact, the role of apology has been discussed in a growing body of case law,(2) and there are numerous legal articles addressing its role in litigation, particularly in the context of alternative dispute resolution.(3) Indeed, since the time I completed the original draft of this Essay, two more articles on the topic of apology have appeared.(4) Many commentators focus on apology in utilitarian terms and promote it as a litigation resource.(5) What is missing in the literature is deeper reflection on apology as a moral activity. In this Essay, I examine the moral dimension of apology. I argue that when apology is cast into the legal arena, its fundamental moral character is dramatically, if not irrevocably, altered.

My interest in this topic stems from my experience as a civil trial lawyer, a role I filled for more than twenty years before coming to Harvard Divinity School, first as a student and now as a dean. As an injury specialist, I represented people who were victims of the negligent and wanton acts of others, people for whom restoration was limited to monetary compensation and, less frequently, injunctive relief. Over the years, I became convinced that something was missing, an essential element the absence of which disrupted my clients' healing. The payment of large verdicts or settlement monies failed to heal the deep wounds of many clients; they continued to suffer and express lingering feelings of anger and resentment. I began to think that the missing, necessary piece for healing was an apology from the offender. I thought that this could, and should, occur as part of the litigation process.

I made this observation firsthand in the early 1980s when I represented a young widow in a medical negligence case. Her husband had been seriously injured, and the medical team in charge of his care failed to discern the extent of the injuries he had sustained. He died a slow and agonizing death. She was left with small children, few financial resources, and deep feelings of resentment against the doctors in charge of her husband's care. The case was eventually settled, and because there were minor children involved, a hearing was held to apportion the settlement proceeds between the widow and the children. As we left the courthouse after the heating, she began to rage. I thought she was disappointed in the apportionment ordered by the court or that she regretted settling rather than trying the case. But she denied that either of these feelings was the source of her hostility. She was angry that none of the doctors had ever said he was sorry that his conduct had contributed to her husband's death. She experienced this omission as another injury, moral harm added to professional malpractice. She said that if the doctors had apologized, she would have felt more able "to heal."

What healing means in a legal arena has not been clearly established. In medicine, "to heal" is equated with "to cure." In tort litigation, the area of law from which this Essay is drawn, the law and lawyers tend to equate "to heal" with "to compensate," an equation that overlooks the idea noted by legal scholar Margaret Radin that compensation is a "contested concept."(6) Radin distinguishes between commodified concepts of compensation, "in which harm to persons can be equated with a dollar value," and noncommodified concepts, "in which harm cannot be equated with dollars."(7) This distinction is helpful because it shows that while commodified concepts of compensation may provide financial redress, such concepts do not necessarily restore moral balance.(8) I suggest that it is this restoration of moral balance that lawyers should intend when they speak of healing.

This means that healing must be understood in a nuanced way when considered in a legal context. That is, while a legal client may be physically injured, he may also be spiritually and psychologically broken. A medical patient who experiences healing :may "feel healed" because of the cure received, whereas a legal client, like the widow in my illustration, may not necessarily need or experience healing in a physical sense. Healing for clients may have a more pronounced moral dimension, a process that can be facilitated relationally by apology. Apology leads to healing because through apologetic discourse there is a restoration of moral balance--more specifically, a restoration of an equality of regard.(9) Understood this way, apology is valuable because it offers the offender a vehicle for expressing repentance and the offended an opportunity to forgive. Apology, then, is potentially healing for both the offended and the offender.

I argue in this Essay that the performance of apology is a complicated and courageous act, one rich in moral meaning when the apology is authentically expressed. I argue, too, that in its authentic expression apology can facilitate forgiveness and the kind of healing my client desired, the kind of healing I thought should and could occur as part of the litigation process. Yet it is precisely this extraordinary value of apology that leaves me less certain of its proper place in the legal arena today. In an exchange process, apology moves from the realm of moral action into the market sphere. Questions arise: What if an offended client is philosophically tied to a belief structure that insists on the expression of remorse as a condition precedent to forgiveness? Does that not lead to a dangerous dependence on the wrongdoer? In that scenario, does the performance of apology attain value without regard to its sincerity? Are proponents of apology systemically encouraging inauthentic expressions of remorse?

The purpose of this Essay then is to explore the healing possibilities of apology in law, particularly in the context of civil mediation. I show that apology can lead to the kind of healing possibilities that I originally imagined--when the moral dimension is understood and protected. I also show that while there are some in the legal arena who respect apology as part of a moral dialectic, many see apology simply as a strategic device to expedite the resolution of a dispute. I argue against such an instrumental view of apology, one that would protect the offender from the legal consequences attached to it. My thesis is that the use in civil mediation of such a "protected" apology subverts a moral process. This strategic use of apology may not be necessarily unethical within the narrow confines of professional responsibility, yet, as I argue here, the subversion of an otherwise moral process is unethical in the wider realm of human relations.

In order to establish this, I first address some preliminary issues. What is an apology? What are the elements of an apology? How is apology a moral act? Are there cultural difficulties that inhibit apology? And are these exacerbated in the legal arena? For answers to these questions I turn to the literature available, primarily writings in the disciplines of philosophy, psychology, religion, and sociology. I then turn to a more focused discussion of the role of apology in law, identifying some of the impediments to the moral efficacy of apology in legal, civil-mediated proceedings. I show how the law itself provides a safeguard for the moral integrity of apology and conclude with suggestions for how lawyers and mediators can themselves facilitate apologetic discourse in ways that protect the morality of apology.

  1. APOLOGY DEFINED

    The characteristic way for human beings to express repentance or sorrow is through apology. Nicholas Tavuchis, a sociologist who has written a detailed text on the subject of apology and reconciliation, believes that "[w]hatever else is said or conveyed, an apology must express sorrow."(10) Of course, "sorrow" is subject to a variety of meanings,(11) but in the context of apology, sorrow is equated with feelings of remorse, shame, and repentance. This understanding leads Tavuchis to separate the essential requirements for apology into two critical ingredients: "[T]he offender has to be sorry and has to say so."(12) According to Tavuchis, the fundamental pattern for the expression of remorse is dyadic, an interaction between the offender and offended.(13) That is, the "exclusive, ultimate, and ineluctable focus" in an apologetic discourse is on the interaction between the offender and offended, entities that Tavuchis sees as "primordial social categories."(14)

    The idea that there exists an "apologetic discourse" suggests a further important understanding regarding the dynamics of apology: that the offender's expression of sorrow is a performative utterance.(15) The sorrow and regret that the offender has experienced internally is converted by speech from "a private condition into public communion."(16) No longer is the offender simply wrestling with internalized humiliation and shame; now the offender chooses to give voice to these feelings, to allow a public hearing of the inner conversation. This public expression of repentance constitutes...

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