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DIY Dispute Resolution: Accountability, Apology, Forgiveness and Reconciliation

When I was mediating the resolution of litigation on my local court-annexed ADR panel, I used to help attorneys, their insurance adjusters and physician clients resolve medical malpractice cases.  

Some of my most profound human interactions occurred in these mediations.  One surgeon said to me, with burning passion in his gaze, "you do not understand.  The operating room is my church."  

Another told me he could not consent to the settlement of a lawsuit because the sum the carrier was offering "would mean that I killed my patient."

Though I do not mediate malpractice cases anymore, I have been given a taste of the trauma that physicians experience when they are sued for malpractice.

What Does This Have to Do with Do It Yourself Dispute Resolution? 

Research on the reasons patients sue their doctors suggest that malpractice litigation could be avoided if:  (1)  the patient understood the reason for an unexpectably bad result; and, (2) the physician were able to express to the patient responsibility for the outcome. See e.g. this Lancet study reporting that patients expressed the following reasons for suing their physicians:

[1] concern with standards of care--both patients and relatives wanted to prevent similar incidents in the future;

[2] the need for an explanation--to know how the injury happened and why; compensation--for actual losses, pain and suffering or to provide care in the future for an injured person; 

[3] accountability--a belief that the staff or organisation should have to account for their actions; [and]

[4] [p]atients taking legal action wanted greater honesty, an appreciation of the severity of the trauma they had suffered, and assurances that lessons had been learnt from their experiences. 

Which Brings Us to Transplant Surgeon Pauline Chen's Book Final Exam

Chen tells us that surgeons, who expect themselves and their colleagues to be infallible, have ritualized their response to error in Morbidity and Mortality -- M&M -- conferences.  She cites sociologist Charles Bosk as first recognizing that M&M conferences

were a special ritual '"for witnessing [errors], resolving the confusion they create, and incorporating them into the group's history and the individuals biography."  And this ritual function [is] so important that even 'those accustomed to letting others cool their heels" cleared all other obligations in order to attend M and M.

                                     *                       *                      *

M and M, our professional ritual centered on death, attempts to heal the rents in our professional fabric caused by patient deaths.  There are few other opportunities for surgeons to discuss death.  We may mention it in passing, but we steadfastly reserve discussion for the conference, which will give us, as a group, ritual absolution.  M and M requires a public accounting of loss and, in so doing, reconstructs the death into an event that affirms a core value of our professional identity:  the need to be infallible in a highly variable world.  In this way, M and M is like death rituals in other cultures; it seeks to transform death's loss into an affirmative experience.  

According to Chen, this ritual of accountability also helps physicians deny their human fallibility, which may prevent them from taking the responsibility assumed in an M and M conference out into their patients' lives.  Chen continues:

By defining death only as the result of errors, we erase the face of our patients and insert our own fiercely optimistic version of immortality.  While admirable in some respects, this paradigm also denies our essential humanness.  When we refuse to accept our own fallibility, we deny ourselves grief.  In the end, then, M and M may prevent us from reaching what we so desperately want to achieve:  the very best care for our patients.

Fallibility,  Accountability and Apology

I have never been responsible for saving, or potentially losing, a human life.  I have only been responsible for other people's money.  And yet Pauline Chen's observations on fallibility strike a deep chord in me as a professional.  If we make a mistake, people get hurt.  And it is harder to accept responsibility for the mistakes that cause others harm than it is to accept just about any other disappointment in one's performance.  It goes not simply to our "core values" as professionals, but to the very center of our professional and individual identity.  

Some of us -- all of us under certain conditions -- will do almost anything to avoid admitting fault. 

Which Takes Us to Brian Cox's Book Faith-Based Reconciliation

First let me say that I experience the same cognitive dissonance reading this book as I experienced taking Professor Cox's Faith-Based International Diplomacy class at Pepperdine Law School.  The necessary wisdom contained here, however, makes me simply translate 'faith' and god (yes, I am, at best, an agnostic) into humanism and other people.

That said, here is Canon Cox's step-by-step prescription for accountability, forgiveness and reconciliation:

  • Acknowledgment of moral culpability:  "I was wrong to have said or done . . . "  This demonstrates moral character.
  • Acknowledgment of the offense or wrongdoing as specifically as possible:  "This is what I did . . . "  The more specific you are in your apology, the more likely that you will receive a positive response.
  • Acknowledgment of awareness of the impact of your behavior:  "This is how I understand that it affected you . . . "  This demonstrates empathy or compassion.
  • Expression of sorrow or regret at having caused offense:  "I feel sadness that I did this to you . . . "  This demonstrates caring.
  • Acknowledgment that there is no adequate or true justification for your behavior:  "There is no excuse for my actions that caused you pain . . ."  This demonstrates sincere . . . sorrow for your actions.
  • Explanation of what you will do to make restitution and/or alter your behavior in the future.
  • Acknowledgment that you are prepared to accept the consequences of your actions.  Avoiding consequences creates the impression that you are attempting to avoid responsibility for your actions and that your apology is insincere.
  • Plea for forgiveness:  "Will you forgive me?"  This is the signal that you have done all you can and that the response has now been shifted to the other person.

Are there potential legal consequences to so open an acknowledgment of error and the adverse consequences it has caused.  Yes there are and we will address them in the next post.

Let me say this, however.  I firmly believe (and I believe the research will support me in this) that apology is far more likely to avoid litigation than it is to trigger it.  In any event, living an authentic, robust life in community requires this.  It is a small act of courage.  Imagine what you would do if your life were at stake and so much more courage were required of you.  Exercise the small acts of bravery now so that you will be prepared to face the much larger ones that may be required of you some day.

Comments (4)

Read through and enter the discussion by using the form at the end
Andrew Mitton - January 25, 2008 2:07 AM

The mantra you hear all through law school is "think like a lawyer." This type of thinking only gets you so far and can even backfire. It's when you think like a human that you can triumph in those "small acts of courage" as you say.

Vickie - January 25, 2008 3:05 PM

Andrew,

Thanks for taking the time to drop by and comment.

I used to believe that "thinking like a lawyer" only meant a rigorous analytic process highly reliant on "admissible" evidence.

This way of thinking was very empowering to me -- a literature major -who previously lived my life almost entirely in the subjective point of view.

"Critical thinking" is what I believe the academics call it.

As I eased my way out 25 years of commercial litigation practice and into neutral practice, I realized I had also taken to thinking of commercial conflict only in terms of rights and remedies -- a much smaller world than the Planet of Injustice that we actually inhabit.

I have, at varying times, felt as if my litigation practice were akin to writing a novel on a piece of rice, reducing the story of my clients' conflicts to such an untextured and un-nuanced a plane, as to remove the actual flesh and blood people from the equation altogether.

So I agree with you, Andrew, as you agree with me, that "thinking like a human" can take us places that "thinking like a laywer" cannot.

The great benefit of my transition from one profession to another is that I have recovered literature -- narrative, story, moral, character and human fallibility in all their dimensions -- while still retaining a keen analytic mind.

It's the best of both worlds!

Vickie

michael webster - February 3, 2008 3:14 PM

I have a current distributorship lawsuit which will likely take ages to settle, at great cost, and had an apology been forthcoming early on, we would have settled it at a fraction of the price it is going to end up.

Vickie - February 3, 2008 3:31 PM

Michael, So then the question becomes: is there any way to avoid the "ages to settle, at great cost" by getting the principals together before the cost and the "ages"? If not, why not? "It's too late now"? Another reason? Should we give up on the magic of human relationship because one party failed to "do the right thing at the right time" if he/she/it might be encouraged to "do the right thing now"?

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