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Wednesday
Apr162008

Simple, Effective & Illegal

iStock_000004933144Small.jpgWould you be interested in an effective, proven way to resolve conflicts, restore trust, repair relationships and yes, even reduce your risk of legal liability?

Would you be interested to know that once the University of Michigan Health System began using this method, attorney fees dropped from $3 million to $1 million per year and malpractice lawsuits and notices of intent to sue were cut in half? What works in the high risk medical field could also help resolve your disputes with employees, customers, vendors and the public.

What is this magical dispute resolution method?

The answer is . . . an apology. That’s right, the way children resolve playground disputes can also work with adult conflicts. Unfortunately, there is a risk that any apology you make can be used against you to convince a plaintiff’s attorney there is a case against you and as an admission of your liability.

The Rules of Evidence provide that repairs made after an accident are not admissible to prove negligence or wrong doing. Similarly, the evidence code provides that offers to settle are not admissible to prove liability. Those same evidence rules, however, provide that admissions by a party may be introduced at trial. Unfortunately, that includes statements of apology.

The medical profession has learned about the power of an apology. Doctors now attend seminars and medical students attend classes on how to make effective apologies. To protect their profession, they have changed the law in Oregon and 33 other states to allow doctors to make apologies without fear that their expressions of concern will be used against them in court as evidence of guilt.

We must work to legalize apologies for everyone. How many disputes could be resolved with a handshake and a simple settlement if we allow apologies without fear? How many cases might never get filed if people could say they were sorry without also saying “I am guilty?” What would be the savings in insurance premiums? How much can we save at the cash register by reducing the liability tax added to every product? What is the productivity drain from responding to lawsuits rather than serving customers? What could be the tax savings if our public servants no longer had to officiate disputes that can be resolved between the parties on their own?

This is the political season. When you meet with candidates for office, ask if they support legalizing apologies. Let me know what they tell you. In January, when the Oregon legislature meets again, we can let our state senators and representatives know that what works on the playground can work in the public square. We can work together to encourage resolution of disputes in a private, personal, cost-effective way without involving lawyers, courts and juries.

Alan Thayer
Business Attorney 

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