An essential, invaluable part of the mediation of a personal injury claim is an apology. It is the first step towards placating emotions that interfere with interest based bargaining.

An apology is as valuable and as important to a claimant as being compensated. Unlike the commercial claim that devolves to a contest over property, rights or money the personal injury claimant has a constant daily reminder of the failure of another. The malpractice claimant almost inevitably includes a component of a breach of trust with the health care provider. The road accident victim blames the person who ought to have been a better driver, the injured worker their employer who didn’t look after them and the customer the shop owner for not cleaning up properly.

The personal injury claimant often develops a form of ‘litigation neurosis’ facilitated by a claims process that requires a ‘re-telling’ of their story over and over again to their lawyers and expert witnesses. The health care provider, driver, employer or shop keeper becomes increasingly more vilified in the claimant’s mind. This becomes a significant emotional feature in their life effecting all around them, relatives and friends alike. The claimant’s emotional response to their injury spills over into the claim and is an impediment to interest based bargaining in a mediation. The claimant wants and needs acknowledgement of their pain and suffering from their ‘wrongdoer’ before they are capable of rational negotiation.

There is a minority view that an apology is a worthless exercise, but the use of an apology, saying ‘sorry’, the expression of remorse, is so integral to our society that it is part of the normal, expected behaviour of a ‘wrongdoer’. So, when an apology is not offered or made this only serves to aggravate the claimant’s emotions and pushes them away from rational negotiation – best interests are ignored, concessions that might have been made are not, positions are maintained, their bottom line becomes fixed.

This aggravation is largely out of the claimant’s control due to the neurological impact of Cortisol, the brain’s own stress chemical that interferes with the higher cognitive reasoning processes. Each stressful event induces a dose of Cortisol and like other drugs, it takes some time to dissipate from the bloodstream. If the stressful events are compounded one after the other then several doses of Cortisol hit the brain in quick succession. The result is a Cortisol overload and a ‘high-jacking’ of the rational mind and emotions that only time and calming behaviour can restore .

The claimant with a firmly entrenched neurosis about the claim already has a significant level of ongoing stress. Their family and friends suffer the claimant’s short temper, impatience or teary episodes. Each time the claimant is focused on the claim by their lawyer or a medical appointment they suffer stress and their mind / emotions are subjected to a dose of Cortisol. The period leading up to the mediation and the mediation itself will be very stressful. The claimant’s lawyer is increasingly relied upon for emotional support and a calming influence.

An emotionally ‘high jacked’ claimant is incapable of rational interest based decisions and thus useless in a mediation and I suggest incapable of giving instructions due entirely to their temporary lack of reason.

A claimant that I acted against sobbed her way through two separate mediations because her claim of awareness under anaesthesia was disbelieved, liability was denied and there was no thought of an apology. In her own mind she genuinely believed that she had been so aware and the stress of the claim process and mediation had high jacked her emotions to the point of despair.

An apology is not an apology when it is couched in terms of ‘I am sorry that you feel that way’ or that ‘you have suffered’ with no acknowledgement of fault or offer of recompense. An apology is an expression of remorse and, to paraphrase Benjamin Franklin, it ought not be ruined with an excuse. A good apology has three parts – I’m sorry, it’s my fault and what can I do to make it right?

In my role as Corporate Counsel for Queensland Health I was the apologist for the Minister for Health and the Queensland Government in the mediations of claims against Dr Patel. I looked into the eyes of over 350 people and acknowledged their grief, admitted the government’s fault in employing Dr Patel and stated a genuine intention to negotiate compensation. The range of responses was remarkable for their consistency. Almost every claimant was thankful for the apology and acknowledgment of their plight against what had been the legal theatre of the Royal Commissions. The emotional responses could easily have been plotted on a classic bell curve. The majority demonstrated palpable relief with outliers of genuine hostility at one end to a nonchalant silence on the other.

The positive flow on effect of the apology on these claimants was reported back by the mediator Ian Hanger QC as well as by their lawyers. The substantial majority of the negotiations proceeded in a calm and rational manner with a success rate of higher than 95%. The acknowledged claimant, (apology received) is imbibed with a feeling of vindication, emotionally calmer and capable of considering their best interests to get resolution.

So my experience is that an apology is a powerful tool with benefits to both parties, why then is the delivery of an apology such a ‘hit and miss’ affair in mediations?

The answer is not an easy one to define.

There is a natural distinction between the ‘wrongdoer’, who can’t help but have an emotional engagement to some degree with the injured claimant and their insurer. Sometimes the insurer actively prevents the ‘wrongdoer’ from apologizing consistent with a corporate strategy of denial of liability regardless of the facts.

The last round of legislated tort reforms in Australia, circa 2002, recognized the value of an apology and the dilemma posed to insurers with the introduction of the ‘no fault or consequence’ apology or the ability to say sorry without effecting a defence .

Aside from the atypical ‘caring’ claims handler or manager, emotions are rarely stirred in the insurer. Insurers are in the business of being dispassionate, their actuarial world tries to minimize risk, predict outcomes and reduce liability and quantum. A claimant to an insurer is a file number, a reserve, an entry in a database and something to be finalized as soon as possible. Claimants are quite deliberately not viewed as people with emotions, family, friends, lifestyle or any need to be acknowledged. In the financial report, claimants are treated collectively as contingent liabilities on a balance sheet.

There is also a distinction to be drawn between ‘old school’ insurers and sophisticated or ‘new school’ insurers. Sophisticated insurers will recognize the value of an apology not only to the claimant but also to their insured, in whom it satisfies the basic human response of empathy to pain and suffering as well as to the negotiation process.

The mediation is a focus point for all the parties to engage in resolution. There is significant time, effort and expense involved in getting to a mediation and it ought not be wasted. My experience across 20 years of mediations is that the sophisticated insurer, upfront with an apology made by the wrongdoer or their representative is far more successful at mediation than the ‘denial of liability but we are prepared to make you an offer’ approach that typifies the old school.

The issue of an apology ought to be raised at the induction or start of the mediation process by the mediator with the lawyers for all parties. The lawyers for an insurer reluctant or refusing to make an apology have a responsibility to persuade their client of its effectiveness to the negotiation process and measurable value – e.g. lower costs, potential for concessions in the claim and resolution.