Forum Summary


Our discussion will center around the important, yet often ignored, world of apology and forgiveness in disputes.  Just last week Anita Hill received
a voice mail asking her to apologize to U.S. Supreme Court Justice Clarence
Thomas for events that transpired nearly 20 years ago.  The need for
apology and forgiveness are often are at the center of disputes, yet the
legal system, as it is currently configured, is not well
designed to facilitate either one  In the dispute resolution
world, there is greater awareness of the importance of apology and
forgiveness, but here too, professionals are largely ill-equipped. 
All of this is, of course, compounded when the parties and mediator are
using online means.  This discussion will examine this world of apology and
forgiveness in dispute resolution, and in online mediation.



Case Scenario

Please review the following case used to enhance this discussion:
Ecotourism media effects case.pdf



Moderator Bio
s

Sam Edwards, J.D., LL.M.

Associate Professor Environmental Law and Policy

Green Mountain College

1 Brennan Circle

Poultney, VT 05764

edwardss@greenmtn.edu

Sam has been teaching negotiation at the graduate and undergraduate levels since 2002. From 2002-2007 he taught at Nagoya University's Graduate School of Law in Nagoya Japan. In 2007 he moved to Green Mountain College in Vermont where he teaches negotiation and a variety of law courses.


Sam has an LL.M. in international environmental law from Nagoya University Graduate School of law and a J.D. from Lewis & Clark Law School. Sam is licensed to practice law in California, Guam, The Commonwealth of the Northern

Mariana Islands, and Yap State in the Federated States of Micronesia.


His research stems from his work in Micronesia, Japan, and Africa. His publications include:

Sam Edwards, Doing international business online for the small and medium business: will e-payments and online dispute resolution open doors to international trade, in CYBERLAW FOR GLOBAL E-BUSINESS: FINANCE, PAYMENTS, AND DISPUTE RESOLUTION Chapter 16 (Takashi Kubota ed., 2008).


Eileen Barker


Eileen Barker is a mediator and teacher based in San Rafael, CA.   Over the past twenty years, Eileen has mediated hundreds of cases in a wide range of subject matters including business, partnership, employment/workplace, probate and estates, and family law/divorce.  She has taught mediation and conflict resolution courses at UC Berkeley School of Law, UC Hastings College of Law, Sonoma State University and John F. Kennedy University, and currently teaches at the Werner Institute, Creighton University.  Eileen is a leader in the movement to integrate emotional healing and  forgiveness with conflict resolution. She leads trainings on transforming conflict through forgiveness, and is the author of the Forgiveness Workbook and Forgiveness Meditation CD.



Michael Cote


Environmental Urban Planner
3 Hampton Ave #47
Northampton, Mass., 01060
Phone: (206) 550-3034
Email: michaelcote@gmail.com
Web: http://umass.academia.edu/MichaelCote


Michael Cote is an environmental planner specializing in Climate Change Adaptation for coastal communities. He is working on a book and several articles covering the intersection of land-use law and climate adaptation policy. Adapting to climate change involves complex land-use laws, private property rights, and intense negotiations. He attended the negotiations at the United Nations Climate Change Conference (COP15) in Copenhagen this past   December with the Vermont Law School delegation. A corporate-contract writer in a former life, Mr. Cote recently graduated with a Masters in Regional Planning from UMass-Amherst, and a Masters in Environmental Law and Policy from Vermont Law.




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Replies to This Discussion

Hi Lanni,
I completely agree, and think that you have done an excellent job of outlining some of the primary issues and scenarios involved with apologies via ODR. I can see how oftentimes an apology via text or audio can sometimes be misinterpreted, but I agree with you that video may be the best method for communicating in the most sincerest fashion. Having a "live" apology like would be the most likely situation where the participants wouldn't misinterpret the other party.

lanni marchant said:


Sam Edwards said:
Given the scenario what online platforms offer the best system to help facilitate an apology? Would text only offer a "safe" way to get the apology across? Would a pre-recorded voice message be better? Would live video work best?
The use of technology throughout the dispute resolution process itself requires those involved to choose their means of communication carefully. Depending on the forum chosen, parties have to choose their words and phrases with caution, especially during instances where communication is solely text based, but also during telephone or recorded voice message communications and live video. During text- based ODR, it can be difficult to create trust between the parties, and there is the risk that something typed will be misinterpreted. These issues are present, and perhaps more compounded, in an apology setting, where it is possible that one party may doubt the sincerity of the other side’s apology, or there is the potential for an apology to come across crass or incomplete. A pre-recorded voice message would also run the risk of sounding insincere and rehearsed. Like a written apology, a recorded voice message may be received poorly, and cause the receiving party to feel as though his or her issues were not completely resolved. A live video apology may work best, as it would enable both parties to see each other’s body language and facial expressions. It would also allow for more of a dialogue during the apology. A live video apology has the feeling of a real face to face meeting, and helps create a more satisfying apology for the receiving party, as there is not the appearance that the apologizing party is hiding behind closed doors.
Hello! My name is Huong Vo and I am a student at the University of Massachusetts Amherst. I really enjoy reading the responses to this discussion and have learned a great deal. I had a few points I wanted to ask about the need for apology/forgiveness in an online context however.Please excuse me ahead of time if I seem way off topic.

While apology and forgiveness may be appropriate in some disputes, I also wonder if it is applicable to the vast majority of the online world. For instance on an international level, wouldn't the players involved be limited to corporations, government officials, and the likes? If so, apologetic gestures by these organizations are often done publically and as a natural process of maintaining public relations. Therefore would an apology in the online arena really apply/be necessary? If then on a local level, the disputes revolves around commerce and each participant is simply hoping for a refund or exchange, would an apology warrant more than the situation is asking for?

Although I believe there are many cases where an apology should be made and forgiveness should be considered (such as an accident), I would first question whether these cases should even be brought into the online world for resolution in the first place...

Ultimately if the dispute is centered around one corporation and its employee (as an example),I believe a face-to-face apology is not only the most sincere, but also the best way to reach out to the person who has been hurt by the events - even if the dispute was resolved with online mediation. The parties in this situation are conveniently accessible and to video chat, text, or write and apology and send it online seem to me, to be a bit silly. Again asking the question of where apologies in the online context really fit?
I agree that in most situations, an apology given in “real-time” can capture a sense of sincerity that most words may be incapable to convey. However, I believe that there are circumstances where an apology delivered via text can be just as, if not, more powerful to establish authenticity of regret and reestablish the requisite trust for businesses, such as those in the Ecotourism case, to move forward. For instance, a well-written apology crafted with the details of the dispute, where the wrongdoer went wrong, and an acknowledged understanding of how the wronged party feels, can go much farther than a seemingly disingenuous apology delivered face-to-face. Even a mere smirk or a misinterpretation of one’s eyes can convey an apathetic apology that may simply be the result of someone’s rapid blinking or a blurry camera. This is a unique issue that may arise where business crosses not only geographical but cultural boundaries as well-a region of communication that is ripe for misinterpretation. In contrast, when an apology is delivered in standard English, free of eye contact, but also free of idioms, it may actually work to avoid unnecessary misinterpretation while giving the aggrieved party the solace of knowing such ownership of wrongdoing is committed to a permanent record.


Kaitlyn Mulligan said:
Hi Lanni,
I completely agree, and think that you have done an excellent job of outlining some of the primary issues and scenarios involved with apologies via ODR. I can see how oftentimes an apology via text or audio can sometimes be misinterpreted, but I agree with you that video may be the best method for communicating in the most sincerest fashion. Having a "live" apology like would be the most likely situation where the participants wouldn't misinterpret the other party.

lanni marchant said:


Sam Edwards said:
Given the scenario what online platforms offer the best system to help facilitate an apology? Would text only offer a "safe" way to get the apology across? Would a pre-recorded voice message be better? Would live video work best?
The use of technology throughout the dispute resolution process itself requires those involved to choose their means of communication carefully. Depending on the forum chosen, parties have to choose their words and phrases with caution, especially during instances where communication is solely text based, but also during telephone or recorded voice message communications and live video. During text- based ODR, it can be difficult to create trust between the parties, and there is the risk that something typed will be misinterpreted. These issues are present, and perhaps more compounded, in an apology setting, where it is possible that one party may doubt the sincerity of the other side’s apology, or there is the potential for an apology to come across crass or incomplete. A pre-recorded voice message would also run the risk of sounding insincere and rehearsed. Like a written apology, a recorded voice message may be received poorly, and cause the receiving party to feel as though his or her issues were not completely resolved. A live video apology may work best, as it would enable both parties to see each other’s body language and facial expressions. It would also allow for more of a dialogue during the apology. A live video apology has the feeling of a real face to face meeting, and helps create a more satisfying apology for the receiving party, as there is not the appearance that the apologizing party is hiding behind closed doors.

I may be stating the obvious, but the best "means" by which to make an apology seems highly situational.  There are probably some instances in which an apologizer may want to explain the situation from his or her perspective, including any complex facts or circumstances that led them to act in a regrettable way.  When this is the case, I think a written document provides the best medium for laying out one's "case" and stating that, with hindsight, one would have acted differently.  However, there are other situations in which no explanation of the backstory is needed, and in those cases a blunt, face-to-face (or via video conference) "I'm sorry" is probably the best means way for the healing process to begin.  In any event, online media allows for both these contingencies, although there may be situations in which it is desirable to get the parties in the same room to facilitate the apology. 

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