Wednesday, March 26, 2008

Pros and Cons of Apology Legislation

The most recent edition of The Lawyers Weekly features the article Saying sorry: Apology legislation makes it a lot easier by Ellen Desmond, past chair of the national section for Alternative Dispute Resolution, Canadian Bar Association, and sessional lecturer in dispute resolution at the University of New Brunswick’s faculty of law.

Apology legislation allows individuals and institutions to offer an apology as part of their dispute resolution process without fear of legal liability.

The provinces of B.C., Manitoba and Saskatchewan have such laws on their books, as do foreign jurisdictions like Australia and 20 U.S. states.

In the article, Desmond outlines the advantages as well as the drawbacks:
"This legislative trend is the result of the growing body of evidence that apology laws assist in a reduction in both the number of and the time required to settle lawsuits (...)"

"While the benefits of this legislation are clear, concerns exist as well. This is especially true regarding the comprehensive apology legislation that has been adopted in western Canada. In a 2006 discussion paper, the B.C. Ministry of the Attorney General identified some of the difficulties associated with this type of legislation, including the following:
  • Public confidence in the courts may be affected if a person admits fault but is subsequently found not liable in a proceeding;
  • Insincere and strategic apologies may be encouraged; and
  • Apologies might create an emotional vulnerability in some plaintiffs, who may, thereafter, accept settlements that are inappropriately low."
Earlier Library Boy posts on the issue of apology laws include:
  • Apology Acts - Saying 'Sorry' Without Incurring Liability (November 19, 2006): "The province of Saskatchewan will amend its Evidence Act to allow individuals and corporations to offer a sincere apology as part of their dispute resolution process without fear of legal liability... the provincial Justice Minister is quoted as saying: 'Within legal parameters, I think individuals are very concerned about saying anything that might cause them some legal liabilities and we want to clarify that for people(...) We believe that this will allow matters of dispute between citizens to be resolved, in many cases without a lawsuit. Because sometimes it's not the financial compensation, it's the desire for restoration, for an apology, for an acknowledgment that somebody was hurt'."
  • Analysis and Critique of Apology Laws (January 14, 2007): "Marlynn Wei of the Yale Law School has just published an article in the Journal of Health Law, 2007 entitled 'Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws' (available for download via the Social Science Research Network) ..."

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posted by Michel-Adrien at 5:40 pm

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