Apology, Forgiveness & Reconciliation Susan Daicoff, Professor of Law Phoenix School of Law 2013 (c) Susan Daicoff, 2013

Apology, Forgiveness & Reconciliation

Susan Daicoff, Professor of LawPhoenix School of Law

2013(c) Susan Daicoff, 2013.

apology

(c) Susan Daicoff, 2013.

Apology Elements

• Understand & acknowledge impact of my actions on you

• Say I’m sorry; express remorse & regret for my actions• Sincere, non-self-focused attitude w/ visible shame• Without anger or blaming• Accept responsibility for what happened• Express that my actions were “wrong”• Express willingness to change in future & plan for

changing and not repeating• Express willingness to make restitution


forgiveness


Definitions of Forgiveness

Cohen - “cessation of resentment against the offender” Fincham - “a defining feature is the foreswearing of resentment”Li-ann - Ex. where victims issued a joint public statement accepting the offender’s apology & promising to work together in the future to “promote mutual understanding”


Forgiveness Elements• Precursors: Express impact of your actions on me• Believe you are sorry • Have you accept all blame for what happened• Ask why you did it & get answers from you• Have faith that something good will come of this• Hear plan to receive material restitution from you• Hear plan for how this won’t happen again

• Accept your apology• Express forgiveness & mercy to you• Stop being angry with you• Not lecture you from a moral “hilltop”• See you as a fellow human being• Do more than just listen or hear


“encounter”

exchange

core sequence

process(c) Susan Daicoff, 2013.

Shifts• Wronged-- shifts from anger to acceptance to

openness. Understands why act was done and has empathy for wrongdoer

• Wrongdoer -- shifts from defensiveness and shame to openness, humility, and acceptance of responsibility. Has empathy for impact of act on wronged

• Mutual underlying, explicit or implicit, recognition: “We are both human, no one is perfect, we are both co-members of the human race, we are both human beings worthy of value and there is some commonality between us.”


reconciliation


Link to the Comprehensive Law Movement: Law as a Healing

Profession

Apology-forgiveness-reconciliation

sequenceis a route

to healingIn legal disputes &

matters

The movement offers structures for the A-F-R sequence to occur


A vibrant movement in the law towards law as a healing, positive

forceTherapeutic jurisprudence

Restorative justice

Holistic justice

Problem solving courts

Procedural justice

Creative problemsolving

Collaborative law

Transformativemediation

Preventive law

Mindfulness


Law as a Healing Profession

Therapeutic Jurisprudence

Creative Problem Solving

Holistic Justice

Lenses:

Processes:Collaborative Law

Restorative Justice

Preventive Law

Litigation & other judicial processes

Facilitative Mediation

Transformative Mediation

Evaluative Mediation

Arbitration

Procedural Justice

Problem Solving Courts

Religious/SpiritualTraditional/

Adversarial

(win/lose – binary)

Negotiation/Settlement

Preventive Law

mindfulness


Forgiveness is important at least in:


Restorative justice

Therapeutic jurisprudence

sanative

“recognition”

Restoration of offender to society


Therapeutic Jurisprudence

• Law, like it or not, has therapeutic & antitherapeutic consequences on parties, groups, and systems

• Legal personnel can intentionally seek to enhance the therapeutic results and minimize antitherapeutic results of legal rules, processes, and actors, without trumping legal rights

• “well being;” mental health


Transformative Mediation

Explicit transformative goal: to engender “moral growth” through increasing parties’: “Empowerment” & “Recognition”

Focus on improving parties (not situation)


Collaborative Law Nonlitigative Independent legal

counsel Interdisciplinary teams “Four” way conferences Contractual commitment

to w/draw if go to court Binding commitments Neutral experts Interest-based bargaining

(vs. position-based)


RESTORATIVE JUSTICE

CRIMINAL LAW TRANSFORMED: Victim, Wrongdoer, & Community

EncounterConferencing

Apology-forgiveness-reconciliation core sequence(c) Susan Daicoff, 2013.

What is reconciliation?


Reconciliation literature

No universally agreed-on definitionAgreement between adversaries

Restoring right relations among enemiesFundamental shift in relations

Desired goal on its ownPossible (but not always) result of apology-

forgiveness sequencePeace Closure


A wrong: a rip in the fabric


features of reconciliation

Interpersonal?Rebuilding of trust?

Long process?Voluntary?


Reconciliation Definitions & IdeasAfter apology & forgiveness, reconciliation may or may not occur.

Reconciliation is present when the apologizer and the person(s) harmed move away from an adversarial stance of anger, blame, shame, and resentment towards a mutual appreciation of each other and perhaps a sort of peace, or harmony, between them.

In one Singaporean example, Li-ann references reconciliation as a possible outcome of the apology-forgiveness exchange in claiming that the “reconciliatory posture” adopted by the Buddhist and Taoist leaders may promote “empathy and reconciliation” and is “essential to long-term or durable peace.”


Law as a Healing Profession

• Vertical & Horizontal Justice (Yazzie)• Vertical & Horizontal Harmony (Link)• Vertical & Horizontal Reconciliation


• Notre Dame Law School Dean Emeritus David T. Link described “vertical harmony” & “horizontal harmony” as possible outcomes of dispute resolution processes.

• Horizontal harmony refers to harmony between disputing parties, between people in a community, or between a criminal offender and the relevant community;

• Vertical harmony refers to the offender or apologizer being reconciled with and to his or her Creator or God.

Vert & Horiz Harmony


Vertical & Horizontal

Reconciliation


The State of the Legal Profession



Solutions & Responses

06


the future of the legal profession will likely include …


thecomprehensive law

movement


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Traditional JusticeCompetitiveAggressiveAmbitiousEmphasis on winning (dominance)Rights-orientedLogical, analyticalMaterialistic, law-as-a-businessExpert, zealous advocate for one client (c) Susan Daicoff, 2013.

Comprehensive JusticeCollaborative

InterdisciplinaryWin/win

Interest-orientedFocused on emotions,

values, needs, & relationships

Holistic, right-brainedSustainable outcomes

Conflict resolver & problem solver

Adversarial conflict is often destructive

Equal partner with client(c) Susan Daicoff, 2013.

A vibrant movement in the law towards law as a healing, positive

forceTherapeutic jurisprudence

Restorative justice

Holistic justice

Problem solving courts

Procedural justice

“TJ/PL”

Creative problemsolving

Collaborative law


Preventive law

Mindfulness


Important Websites• www.cuttingedgelaw.com• http://www.courtinnovation.org/ • http://www.law.arizona.edu/

depts/upr-intj/• http://

www.collaborativepractice.com/default.asp

• http://www.transformativemediation.org/

• http://www.restorativejustice.org/• http://www.cehd.umn.edu/ssw/

rjp/

• J. Kim Wright’s site• ProblemSolving Courts• Therapeutic

Jurisprudence• Collaborative Law• Transformative

Mediation• Restorative Justice (2)


common ground of these approaches or “vectors”

optimize human wellbeing

”rights plus”(c) Susan Daicoff, 2013.

What does this new way of resolving legal matters look like?


lawyers with excellent empathy and insight


a collaborative, egalitarian lawyer-client relationship


multidisciplinary, collaborativeproblem solving


innovative conflict resolution models


no more “one-size-fits-all”


differentiated legal services

Lawyers who solve problems


Excellent interpersonal awareness


active listening & empathy


procedural justice





apologyforgiveness

reconciliation


Concept Victim’s Need Offender’s Apology

consequencesTo express the impact the O’s actions had on the V’s life, including expressing the painful emotions caused in V by the event

To understand and acknowledge the impact the O’s actions had on the V’s life

apology/remorseTo believe, have faith that the O really is sorry for what he or she did, is remorseful, regrets what happened not solely for selfish reasons

To apologize, say I’m sorry, express remorse, regret that the event happened to the V, in a sincere, non-selfish, non-self-focused manner, with O being visibly ashamed of what he or she did and not being angry, which allows V to see O as human – forges bond between V & O

responsibilityTo have all blame shifted entirely off the V and entirely onto the O for the event

To accept responsibility for what happened, to express awareness that the event was “wrong” and that O did wrong

forgivenessTo forgive the O, stop being angry with O, stop lecturing O from hilltop, see the O as a fellow human being – forges bond between V & ONOTE: relentless anger at O may be moral indignation, which may be unacknowledged (projected) shame

To receive V’s forgiveness

understandingTo ask why, to understand more about why this happened to me May also include understanding the O as a fellow human being

Explains why the offense was done May also include understanding the V as a fellow human being

positive outcome/rehabilitation

To have faith that something good can come out of this event, that the O will improve as a result

To admit that O has a problem and express O’s willingness to change

restitution to vTo receive material restitution from the O to “make whole” the loss that arose from the event

To express willingness to make material restitution to V, outline a plan for it

plan for the futureTo know that this will not happen again To describe his or her plan for changing and not

recidivating(c) Susan Daicoff, 2013.

How does the “lawyer personality” fit in?(c) Susan Daicoff, 2013.

THE “LAWYER PERSONALITY”

competitiveness

materialism; value economic bottom-line

need for achievement; ambitious under stress

interpersonal insensitivity

“Thinking” MBTI preference over “Feeling”

“rights” orientation over ethic of care

dominance

aggressive under stress

drive to achieve

interpersonal relating style

pessimism?

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Apology, Forgiveness & Reconciliation Susan Daicoff, Professor of Law Phoenix School of Law 2013 (c) Susan Daicoff, 2013