Law Times

PAGE 12 FOCUS December 8, 2008 • Law Times ADR community welcomes apology legislation A BY GLENN KAUTH Law Times pologizing can make a big difference in helping parties reach settlements out of court, which is why On- tario's alternative dispute resolu- tion community is welcoming new provincial legislation mak- ing it easier for people to do so. "I think a sincere apology can move the matter forward. It makes a significant inroad in trying to re- solve a conflict," says Toronto me- diator Deborah Anschell. Introduced in October by Ontario Attorney General Chris Bentley, the Apology Act would allow people and organizations to say sorry without the fear that the other side could use those words against them in a civil law- suit. "The goal of the legislation is to encourage sincere apologies — saying sorry for a mistake or wrongdoing is the right thing to do," Bentley said at the time. The move followed the in- troduction of a similar private member's bill by Sault Ste. Marie MPP David Orazietti earlier this year. During that period, the Ontario Bar As- sociation has been advocating for the government to sign on to the law, Anschell notes. Already, the government bill has passed second reading and will soon move to hearings. Marina Mussani, another Toronto-area mediator, agrees that apology legislation may benefit those eager to keep a case out of court. "In that context, apologies could work wonders. A lot of the time, there is a lot of pain, and I think an apology goes a long way towards starting that process," she says. In mediation sessions, of course, Mussani says saying sorry can make a big difference to the process. Often, she gets the sense during mediations that an apology is the one thing standing in-between a settle- ment and continued legal ac- tion. "I have found that in me- diation, sometimes an individual will apologize. In a breakdown of at hand is more about emotions than about facts, she says. At the same time, mediators are unsure exactly to what degree the new law will apply to their work. That's because mediation sessions are already confidential, and the parties can use none of the information disclosed during a future lawsuit should the case go to court. Still, Mussani says the legislation should help set a new tone in the legal community that will reduce barriers to apolo- gies even during mediation. "It's just that there is this fear that if I say anything, it will be an admis- sion of guilt," she notes. That fear, of course, is one 'We would hear in mediation that if only they had said they were sorry, I wouldn't have gone this far,' says Heather Swartz. a marriage, for example, an ac- ceptance of responsibility allows them to move forward." That's particularly true where the issue often instilled by lawyers. As a result, Heather Swartz, the president of the ADR Institute of Ontario, says the reluctance to apologize has sometimes led parties to sue where they oth- erwise might not. "In the ab- sence of it, they end up having to substitute things in order to replace the apology." That means, for example, that an ag- grieved party might increase a damage claim as a substitute, Swartz says. "We would hear in mediation that if only they had said they were sorry, I wouldn't have gone this far," she adds. Currently, apology legisla- tion exists in British Columbia, Saskatchewan, and Manitoba. In B.C., in fact, a long-standing grievance is a good example of the usefulness as well as the potential limitations of such laws. In 2004, former attorney general Geoff Plant issued a statement of "deep regret" in the provincial legislature for the suffering of the Doukho- bor community. The move was in response to anger over the govern- ment's treatment of Doukhobor children 50 years ago. At the time, the radical Christian group had been fighting to keep Doukho- bor children out of government schools, and following a series of violent attacks, officials seized them and kept them separated from their families. Plant stopped short of a full apology, however. As a result, the community, headed up by a group called the New Denver Survivors, continues to push the issue. At the same time, the group has argued that an out- right apology wouldn't appease all of its demands, which include a push for compensation. Swartz notes that an apol- caseAlert – Intellectual Property An easy to use electronic service that keeps you up to date with the latest decisions in intellectual property law. Each week subscribers receive an e-mail bulletin summarizing recent court decisions in the intellectual property law area which are linked to the case digest and the full text decision in pdf format. 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Prices subject to change without notice, and to applicable taxes. www.lawtimesnews.com CA008 (LT 1-2x4) 1 12/3/08 2:14:05 PM LT1208 phasizes the importance of sin- cerity behind the apology. As she points out, one area the government has identified as being particularly applicable to the new law is medicine. That's because health-care profession- als have long feared saying sorry when something has gone wrong for fear of a lawsuit. The prov- ince's medical community has welcomed the new law, saying it would free doctors and nurses of a legal restraint when dealing with patients and their family members, but Mussani hopes the use of the law won't get tied up in concerns over wording. "For it to be heartfelt, it [shouldn't] require the use of a whole set of vocabulary. That vocabulary can't be controlled," she says. "Everyone has their own way of offering an apology," she adds. LT

• Cover
• Stays On Bench
• Second Opinion
• Focus On ADR/Mediation