Amsterdam Interdisciplinary Centre of Law and Health

1. Amsterdam Interdisciplinary Centre of Law and Health Apology as an enforceable remedy in private law; a Dutch perspective Kiliaan van Wees Non-Adversarial Justice Conference 4-7 May 2010 Melbourne, Australia

2. Apology and private law • A legal duty to apologize – could this exist? • On what legal grounds? • Can a forced a apology be meaningful? • Does the personal nature of an apology prevent its legal enforcement?

3. Psychological impact of wrongdoing and non- pecuniary needs of victims • Psychological theories explain harm as the result of a disrupted relationship between the victim and the harm-doer • Need to restore the moral and emotional balance between the parties • One way a harm-doer can help restore this balance is by offering apologies

4. Psychological impact of wrongdoing and non- pecuniary needs of victims • Dutch study (interviews with personal injury victims and their relatives) • Even if the most important reason for taking action is financial in nature, non-pecuniary needs play an important role • Non economic needs can also include a desire for apology. • Studies point out that the desire for apology may be the primary motivation to sue and suggest that offering apology may influence the decision to sue or settle

5. Apologies and the goals of tort law • The goal of a tort law is to make the victim whole, to return the victim as near as possible to his or her pre-tort condition • This implies that recovery takes precedence over monetary compensation • Tortfeasor is legally obliged, in principle, to implement anything that has proven to be beneficial to the victim’s recovery. • This may include the offering of an apology .

6. Legal grounds for a duty to apologize • Reparation in a nonmonetary form is a necessary requirement for recovery of the injured person (artt. 6:106 jo 6:103 BW) • To mitigate the damage (art. 3:296 BW) • The termination of an unlawful situation (art. 3: 296 BW) • Additional effect of the principle of reasonableness and fairness (art. 6:2 lid 1 BW)

7. Elements of apology (Lazare) • Acknowledging the event as well as responsibility for it • Offering an explanation • Communicating certain attitudes and behaviors (remorse, feeling sorry) • Offering compensation Only the first element is crucial, the importance of the other three depends on the circumstances of the case

8. How apologies work: therapeutic and societal benefits • mitigation of anger and resentment • help to develop a more positive perception of the offender => contributes to conflict resolution • victims are empowered because they may decide to grant forgiveness • assure victims that the offence was not their fault (avoiding self blame) • allowing them to feel more secure that the offence will not happen again due to the offender’s implied commitment • social pressure to refrain from the same behavior in the future • confirmation of shared values

9. Can a forced apology be meaningful? Classical objection: Apologies must be sincere to be of any real value to victims ‘Compelled apologies are no apologies, because the power of apologies in interpersonal relationships flows from spontaneous and sincere regret about one’s failures. (Dutch district court)

10. Can a forced apology be meaningful? • Also questionable or insincere apologies may have some of the benefits mentioned (e.g. confirmation of shared values) • Even insincere apologies • can induce offenders to take responsibility for his actions • can help the victim to grant forgiveness • and therefore contribute to conflict resolution • Sincerity will be particularly important between parties with a (long term) personal relationship • Up to the plaintiff to decide?

11. Potential conflicts with the right to free expression • Claim for apology generally rejected -> conflicts with the freedom of expression • Example Wrongful dismissal by the Utrecht police region Required apology from the police force manager rejected by the court ‘nobody can be forced to express an opinion that is not its own’ Awarded: to publish a statement without personal elements

12. Apology and the freedom of expression • Element of acknowledgement of the offence is crucial. To some extend this implies ‘expression of opinion’ • However, freedom of expression concerns are not always convincing • Factors that may influence the outcome of balancing of the interests • The nature of the wrongdoing • The capacity of the defendant • The reason for refusing the apology

13. Apology and the freedom of expression • Disclosing medical errors and offering apologies can be part of a professional standard • For example, we may expect a physician offer apologies in his professional capacity, even if he personally is not inclined to do so. • Apologies of organizations - Hospitals - Governmental bodies - Insurance company

14. Apologies ordered by the court? • A direct order to apologize is highly problematic • Balancing beneficial effects on recovery (and mitigating further harm) against the right of freedom of expression of the offender, the latter will often be of overriding importance • To be forced by a court of law to express an opinion that is not one’s personal opinion => immoral (forcing someone to lie); violation of human dignity? • Weighing of the interests may lead to another conclusion if it concerns organizations • And maybe also if it concerns persons in a professional capacity

15. Modalities in claim and dictum • Court order to offer apologies, leaving the formulation to the defendants own choice of words • A judgment stating that a duty to offer apologies has been breached, but explicitly denying the claimant coercive measures • An invitation by the judge to offer apologies during a party appearance • An order for rectification without personal elements • Awarding of a higher amount for non-pecuniary damages in the case a duty to apologize has been breached

16. Concluding remarks • We have to acknowledge the limited capacity of the law to regulate the immaterial domain • Nevertheless, given the beneficial effects of apologies, the legal system should encourage the offering of apologies as much as possible. • Biggest potential probably in the indirect effects (awareness of the importance of an apology)