In the August issue of Hong Kong Lawyer, Damien Laracy and Fontaine Lai explored the effect and scope of the recently enacted Apology Bill in an interesting insight. The Bill’s scheme and intent is “to promote and encourage the making of apologies with a view to preventing the escalation of disputes and facilitating their amicable resolution”. Of particular interest is how the legislation has been drafted to ensure that an apology does not amount to an admission of liability or fault.
The Ordinance defines an apology widely, and includes apologies by conduct and implied admission, but there are specific exclusions relating to court filings.
Except for the area of defamation, where in a case without any prospect of a successful defence, an immediate apology may be made to limit damages, apologies play little part in litigation. And, of course, a court cannot order a party to make an apology.
Rather, an apology is non-monetary (or even emotional) compensation and may be made as part of a mediation settlement. Some may regard an apology as simply a way of reducing damages and if that is the view of the recipient of the apology it may have no practical effect.
It might be timely to remind those who advise in this field of the required features of an apology according to classic mediation theory. This holds that an apology should be (i) sincere, (ii) voluntary, (iii) in language acceptable to the addressee, (iv) made at an appropriate time, and (v) specific. With regard to timing, an apology made at an early stage and unconditionally is perhaps more likely to carry a settlement-inducing impact than one made during the calculations of a negotiation.
Carl Schneider in an article in Mediation Quarterly has stressed that for an apology to be effective it should not be accompanied by excuses or explanations or have conditions attached.
Roger Fisher, co-author of the well-known Getting to Yes, added his own thoughts on the subject in his book Beyond Reason co-written with Daniel Shapiro. Fisher and Shapiro state that apologies should (i) recognise the emotional impact, (ii) express regret, and (iii) commit not to repeat.
All this suggests that an apology has to be carefully worded. It is asking a lot, and may not be practical, to include this in a simple and sometimes necessarily brief apology. It can be argued that the word “sorry” has its own power and removes the brazen element of what is complained of. Nevertheless, it should be remembered that a grudging apology or one that is clearly tactical made solely with a view to reducing damages may not have the desired effect.