Closing Thoughts: Create Value and Build Relationships through the Power of Apology and a Life Goals Analysis

Just a few closing thoughts about dispute resolution. First thought is that this is an area where you excerpt leadership. Because as we’ve mentioned, some attorneys are not enthusiastic about EDR and about various other forms of dispute resolution. And so your leadership is especially important. Second closing thought relates to the power of apology for resolving disputes. We’ve mentioned an example involving the University of Michigan health system where they adopted a policy of apologizing when there was a medical mistake, and the impact financially that had on the hospital as well as the opportunity to improve the hospital procedures. So apologies are very powerful. The problem is some large corporations have sort of scripted apologies that don’t sound sincere.

And let me give you an example of just the opposite. Many years ago, I took some videos of my young son playing soccer. And I took the videos to a store to had them digitized. And I was especially proud of the videos that showed my son and his teammates. And the store contacts me after a while and they said, we lost your videos. And I was very upset, except that I then received a hand written letter form the owner of the store, and I hope you’ll indulge me if I read this letter. I recently ran across it while cleaning out my attic, and I have never seen a better apology than this one.

So, please keep this in mind, when you’re thinking about using apology. This is the way the letter reads. Dear Mr. Siedel, I was very sorry to learn what happened to your son’s soccer tape. Having children who have participated in sports, I can envision the disappointment your son must have felt, and the frustration and anger you now have for us because of the disappointment we have caused. The check I have enclosed is in no way going to compensate you for the loss to the Siedel family and the other team families. I am very sorry. At our company, he named the company, we do please a great many people with our work.

We also please people with our helpful, efficient and good attitude employees. Unfortunately, you did not experience any of our normal resourcefulness. Please explain to your nine year old son that sometimes people and businesses make mistakes. Some time before Christmas, bring him in so that I can personally apologize to him, and let him pick out a beta movie for himself as our effort to say we are sorry. This letter touched me greatly. The check was unnecessary. It was inconsequential. But this heart-felt apology, I think, goes a long way. Of course there is no threat of litigation here, but regardless, don’t forget about the powerful effect that an apology can have.

Now, a third closing thought and this might seem a little strange, litigation is not all bad. There are actually some benefits from litigation, and one benefit is that when you’re involved in litigation you have the opportunity to go through discovery. Your business during discovery will be put under a microscope by the opposing attorney. And it’s going to take a lot of your time, it’s going to be expensive. But when the litigation is over, don’t walk away from the litigation without utilizing this valuable information. You’re going to learn things about your business through discovery that are probably not available in the normal course of business. So that’s one reason why litigation is not bad.

It does give you an opportunity to learn about your business. The second reason why it’s not all bad, is that many companies rather than defending lawsuits, are aggressive in using lawsuits. These are called, according to the Wall Street Journal, plaintiff recovery lawsuits. They’re used by many companies, including large corporations, who bring suits based on intellectual property rights, perhaps they sue an insurer, perhaps they sue a supplier who provided defective products. And according to the Journal, they’re millions of dollars, hundreds of millions of dollars in revenue produced for companies as a result of this plaintiff recovery lawsuits. For example recently Dao recovered in one year $455 million.

So although I don’t recommend getting involved in litigation, that’s why we focus on dispute resolution, there are some opportunities to use litigation. And the final closing thought relates to life goal analysis. And this thought originated a few years ago when I gave a talk at the annual meeting of the American Bar Association in San Francisco. And I felt very honored that they paired me with another speaker by the name of John Wade who I think is probably the best mediator in the world. He’s a practicing mediator, but his writings are also fantastic. And during his talk, John mentioned a life goal analysis that he uses for dispute resolution. Let me give you an example.

This is a situation that he used. We’ve got a battle between a husband and wife that are going through a divorce. They’re members of the Chinese community in I think he said Sydney, Australia. John is from Australia. So the husband, 45 years old, the wife 36. The husband has a large income and lots of assets. The wife has small income, and relatively few assets. The husband is a prominent physician, the wife runs a small shop. The husband has many supporters in the Chinese community, while the wife is isolated within the community. So they go through very emotional, positional negotiations, and they divide up their property and they’re down to the last 40,000 Australian dollars.

And they just can’t seem to reach an agreement after this very hostile negotiation. So they brought in John, as a mediator. And he asked them both to step back, and think of this negotiation in terms of their life goals. The wife agreed to do this exercise. The husband refused. So what I’d like you to do is put yourself in the position of the husband. If you were the husband here, what life goals might you think about to try to put this specific negotiation in context? Please press Pause for a second. Write down what you think the life goals of this physician might be.

Well, when I did this exercise during John’s talk I thought of a number of goals. I thought well, he wants to increase his assets, he wants to increase his position in the medical community, maybe head a medical center, maybe be named to a professorship in medicine, maybe head a medical society. Perhaps he wants to develop a new relationship with somebody else. Perhaps he wants to enjoy life as he becomes older and has worked hard throughout his life. You can think of a number of life goals that he might have adopted. What happened here as I mentioned he did not do that. Eventually the husband and wife ended up splitting the 40,000 Australian dollars.

And it came time for their court hearing.

Picture the courtroom, you have the wife sitting on one side with a couple of her friends. She was, again, isolated in the community. We have the husband on the other side, with a large group of his friends, some of them ridicule the wife, ready to celebrate, ready to go out to a fancy dinner after the divorce is finalized. So the judge finalizes the divorce. The husband and all of his friends leave in a very jubilant mood. They go out of the courtroom, turn right, and head down to a fancy restaurant. The wife walks out of the court by herself, and as she walks out, she turns to the husband’s attorney and says, now it is time to get even.

She walked out of the courtroom, turned left, and walked down to the offices of the medical society. She walked in and asked, is this place where I can file a complaint against a physician? And they said, yes. She said, I like to file a complaint against and then she named her husband. And she said, number one he performed an illegal abortion, on me. And number two, he has been sending drugs illegally to his relatives back in China.

She filed the complaint, and that destroyed the husband’s career. So when you think about this dispute within the context of your life goals, a relatively minor dispute in light of those much bigger goals, it gives you a perspective. Probably would have been a good exercise for the husband to complete and he didn’t here.