apology, forgiveness & reconciliation susan daicoff, professor of law phoenix school of law 2013...
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Apology, Forgiveness & Reconciliation
Susan Daicoff, Professor of LawPhoenix School of Law
2013(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
(c) Susan Daicoff, 2013.
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”
(c) Susan Daicoff, 2013.
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
(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.”
(c) Susan Daicoff, 2013.
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
(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
Creative problemsolving
Collaborative law
Transformativemediation
Preventive law
Mindfulness
(c) Susan Daicoff, 2013.
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
(c) Susan Daicoff, 2013.
Forgiveness is important at least in:
Transformativemediation
Restorative justice
Therapeutic jurisprudence
sanative
“recognition”
Restoration of offender to society
(c) Susan Daicoff, 2013.
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
(c) Susan Daicoff, 2013.
Transformative Mediation
Explicit transformative goal: to engender “moral growth” through increasing parties’: “Empowerment” & “Recognition”
Focus on improving parties (not situation)
(c) Susan Daicoff, 2013.
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)
(c) Susan Daicoff, 2013.
RESTORATIVE JUSTICE
CRIMINAL LAW TRANSFORMED: Victim, Wrongdoer, & Community
EncounterConferencing
Apology-forgiveness-reconciliation core sequence(c) Susan Daicoff, 2013.
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
(c) Susan Daicoff, 2013.
features of reconciliation
Interpersonal?Rebuilding of trust?
Long process?Voluntary?
(c) Susan Daicoff, 2013.
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.”
(c) Susan Daicoff, 2013.
Law as a Healing Profession
• Vertical & Horizontal Justice (Yazzie)• Vertical & Horizontal Harmony (Link)• Vertical & Horizontal Reconciliation
(c) Susan Daicoff, 2013.
• 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
(c) Susan Daicoff, 2013.
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
Transformativemediation
Preventive law
Mindfulness
(c) Susan Daicoff, 2013.
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)
(c) Susan Daicoff, 2013.
common ground of these approaches or “vectors”
optimize human wellbeing
”rights plus”(c) Susan Daicoff, 2013.
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.
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?
[Sha
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(c) Susan Daicoff, 2013.
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authority available upon request.
(c) Susan Daicoff, 2013.