PODCAST: Episode three - The power of apologies with Gordon Murray

Susan: Hello everyone. I'm Susan, a Best Practice Adviser with the SLCC. And today I'm delighted to welcome with me Gordon Murray, who's kindly agreed to share some insight into a topic on which he recently completed a dissertation for his LLM. That's - the use of apologies in complaints. So Gordon, please would you like to give us an idea of your work background and what led you to think about this topic? 

Gordon: Good morning Susan, and thank you for this invitation. My background is, I was an apprentice lawyer in Glasgow. I became a partner in a large Edinburgh practice in the 80s and 90s. I set up my own practice as a sole practitioner, grew that business, merged with another practice, and then eventually reversed into another big Scottish practice, retiring finally in from the law in 2022. I subsequently went back to university and did an LLM at Strathclyde and I'm now a practising and accredited mediator. 

Susan: Now your dissertation touched on the Apologies (Scotland) Act that was passed in 2016. I think that was some years after similar legislation in other countries. What is the background to that Act and the rationale behind it? 

Gordon: Yeah, it's an interesting one. The rationale – well, I looked at three jurisdictions. One was New South Wales, the other was England and Wales and the third one was Scotland. In both New South Wales, in 2002, England and Wales, 2006, they had acts where apologies elements were introduced. There was a Civil Liability Act 2002 in New South 

Wales and the Compensation Act 2006. But the Scottish legislation was an 

attempt at doing stand-alone apologies legislation, to suggest that 

it can be dealt with as a one-off entity. And that background was 

introduced by Margaret Mitchell, MSP, in 2012. It became legislation when it was passed in 2016. My topic was - to what extent do legal professionals in Scotland have difficulty in apologising and are some jurisdictions better at facilitating that than others? And what actions could we take in Scotland that would help to break down that reserve, if a reserve was indeed found? 

Susan: Right. That's really interesting. Do you think that the reserve really is limited to complaints, or does it apply equally in the advice that they might give to clients, who are involved in a dispute, about the value of apologies in resolving that dispute? 

Gordon: I think if we look at the way that apologies are made, apologies are normal human responses to issues. And I think lawyers, when advising clients, where the client has made the mistake or it's arisen in that way, apologies are ways of managing to dampen down the heat that can be developed, before you get into a negotiating phase. If you can take the heat out of debates, then you have a better chance of negotiating a settlement - which will be perhaps more achieved more quickly, more efficiently, and probably more cheaply, if it can be done quicker 

than through a court process. 

Susan: Can I just pick up on one of the comments that you made there, achieving a dampening down of the heat. So, how would that apply in a complaints process where a lawyer is faced with either a client or a third party, who equally is in a confrontational mode, shall we say? 

Gordon: I think again you have to view it from the human point of view. I think when a professional, a lawyer, has made a mistake and is seeking to deal with that as far as the client is concerned, there's a huge sense of self professionalism within that individual; to have fallen below the standard that the lawyer has been trained in to think about themselves; and in fact the way in which the client probably also thinks of the lawyer. That's quite a traumatic issue. So, if you take the heat out of the situation, on both sides, then you acknowledge that a mistake's been made. If you can acknowledge that mistake's been made, it's of huge benefit. It gives a client really what the client wants as an initial stage. And it also gives the person who's making the apology an opportunity of getting it off their chest, really. To burst the bubble, to get it out there in the open, so it can be looked at, and you can start to move forward rather than looking backward. 

Susan: That's a very interesting perspective on it, getting it off your 

chest in the same way. You mentioned, I think, in your dissertation “achieving dialogue”, which is one of the most important aspects of that. And of course, that is something that the SLCC really focuses on in trying to resolve complaints, or in trying to encourage solicitors and 

advocates to resolve complaints as well. And of course we know the most 

effective complaints handling also considers emotions and perceptions of 

clients. I know you had some discussion with solicitors when you were preparing for this dissertation. Did you find any trends on how they were approaching complaints and the extent perhaps to which they were making apologies as part of their complaints handling? 

Gordon: I went into this not really knowing, with lack of background knowledge, of not having had the situation affecting my practice, thank goodness. Wondering just how professional the legal practices actually are in dealing with issues. And when dealing with the larger practices, they're very fortunate. They have huge financial resources to put behind their Client Relations Managers and their teams, that run issues that arise. And there's a very strong recognition within these groups, where if you can nip an issue in the bud where it's not yet a complaint, it's a client grumble. It's not hit the fan, as it were. At that time, if you nip it quickly, you can stop it escalating into a complaint that makes its way to the SLCC. Good complaint handling is one that doesn't get anywhere near the SLCC. 

Susan: That's true. Do you think that this carries through into the smaller practices? Did you see any distinction between the large and small practices? I mean obviously there's a very different dynamic in the kind of resources that are available. 

Gordon: I think that is something which is of real importance and it's got to be recognised that the smaller practitioners, sole practitioners, of whom there aren't very many left these days, of course. They struggle hugely because they're juggling fee-earning, with managerial roles. It's an extremely tricky thing to do. And there is a tendency, if you have an issue hitting a desk, the fee-earning takes priority, not the complaint, because the fee-earning pays the bills. In those circumstances if you get these people involved, I just wonder whether it's possible to support the smaller practices in a constructive way, to help them look at things with perspective. Again, the larger practices can pass it on to a colleague, pass it on to somebody else, pass it on to a client complaint-handler within the team, within the business, and they can offload it, and 

they can de-personalise the complaint. It's no longer the person who 

made the mistake talking to the client. It's the person who is aware of the mistake, but is not personally then liable for what actually happened, but is there to talk it through with the client and to try and achieve some degree of rapport. Building trust, and empathy, 

and recognising that an issue has happened, that should not have happened, and always, always, is  - how do we sort it? Now there are some cases that simply cannot be sorted and that sadly is litigation, court, and the whole process. But many, many, cases can be sorted by recognising it, and saying “Right, let's get round it. We'll work around this, we'll sort it.” And in that way you can actually - with an existing strong relationship – you can actually strengthen that relationship. If you can deliver, you acknowledge that a mistake's been made, but you're saying:  I'm going to sort it out for you. That reassures the client and it builds that trust -  so long as you can resolve it, and sort it out. 

Susan: Yes, I think that's a very important point that you've made, that of the trust or re-establishing the trust. And I think part of the apology, or that comes with the apology, is also: We recognise that there has been a problem but,  as you say, we are going to find a 

solution to it. And if the client trusts that you will in fact carry on and do that. I think that there has been some research that apologies given actually result in fairly high client retention rates. 
 
Gordon: Yeah. I certainly I experienced that. No practice is blemish- 

free. I remember a case where, you know, something went wrong and you simply go to the client, you take a deep, deep, breath, you're simply confessing to the client that you've made a screw-up. And you say, “But I’ll sort it; I’ll get this sorted out”. It was very human, and it was recognised as such. And once you’ve apologised to somebody and then you say you're going to sort it out, you’re actually taking away the ammunition for the client to grumble because if it's sorted, and your lawyer acknowledged it, then all you can say is, "But can you say sorry again?" You know, once you've actually said it, you've actually strengthened that relationship. Okay, there's no guarantee the client  

will still stay with you, but it just takes the anger away because they've got that acknowledgement. 
 
Susan : Did you find that solicitors or advocates were using apologies as a genuine step, or rather a practical and pragmatic way to manage a difficult situation? 

Gordon: I think the issue we always are going to have with apologies is to do with fault-admission and the possibility of that impacting on PI cover, with the insurers. If fault has been admitted, then apologies can be given freely, and it will have no impact because fault is 

already acknowledged. If, however, you're in a pre-fault situation, that's where it's much more difficult for lawyers to advise clients to apologise to people, if in fact nothing has yet been acknowledged and/or accepted as being a fault. And that's where the legislation came in to try and attempt to create some form of legislative protection for giving apologies. 
 
Susan: Right. That legislative protection, of course, we are talking now in the context really of litigation, aren't we? Complaints are slightly different from the PI type of situation? But I think that the test probably remains more or less the same – and that is really the perception, again, or the client – has the client, or the complainer, been satisfied, and are they prepared to accept it? So from that point of view, do you think that there will always be an advantage to an apology? 
 
Gordon: As a true lawyer speaks, I've been trained never to say yes or no! I would say - probably. I think, almost certainly, the concept of making an apology has always, and ought always to be part of a dialogue or being part of the ammunition that somebody has, to seek to resolve a dispute. An apology can be given cynically, if you wish, but at the end of the day, an apology having been made is creating this ability to structure an ongoing relationship. You just have to be very careful 

about looking at the way an apology is submitted. It's not a golden bullet. It's not going to solve every issue, but it can be valuable to both parties if given at the right time.  
 
Susan: I think perhaps also part of the total arsenal that you have in dealing better with complaints…  
 
Gordon: Exactly. It's part of the toolbox you've got. I was never a litigation lawyer, but litigation lawyers have got all sorts of tools in their armoury, and use of an apology ought to be one of those. But equally, it's not just a litigation issue. It's any civil case. It's any one where there's a contract dispute and somebody is deemed to have been taken advantage of things, in a way. It can be thrown into, again, this normal human discourse. 
 
Susan: Yes. Now Gordon, you mentioned that you are a mediator, of course, as well. And how have you seen the value of apologies in a mediation setting? 
 
Gordon: They're hugely powerful. The advantage of mediation ... Sorry, I'll take it back a little bit, to the legislation. The problem with the 2016 Act is that it seeks to give protection against making an apology and it says it (the apology) cannot then be founded upon in court processes. And that's a generic interpretation. But in practice there's no test, there's been no testing of what that actually means. So the litigation is not well known. And in fact many of the CRMs I 

spoke to hadn't come across it and had never thought of using it. So it's a wee bit of a damp squib. But, that said, the principle behind it is a valid one and a laudable one. What we need to try and move to is to 

use mediation as a way. It’s a confidential forum and when you agree to mediate - you've got a contract to sign and it effectively says: Whatever I say, and whatever you say, in this mediation is confidential. What comes into this as confidential, I can’t take it into the court and say: “He said that”, “She said this”, whatever. You cannot do that. And therefore it is a genuinely protected environment, where apologies can be given openly without fear of it coming back to bite you, if in fact there is a subsequent issue about fault-admission or not. It's a very strong forum and it's one that I find, is very strong still.  It’s been around for a long - or a longish time. The whole movement, the ADR movement started in the 1970s. So, it's not new. And yet it's not gained a lot of traction. The Sheriff Courts are now beginning to direct people to go to mediation where they have a civil procedure case hitting the desk and they look at it and say, "Uh,crikey, this is something that really ought to be mediated rather than take up court time." It's a remarkable tool and we need to sing its praises and seek to develop it and make it more widely understood. It will not be all things, to all people, but it is a tool and it's a valuable tool, one that allows apologies to flourish and, as I say, to create (a way) to deal with the human emotion that exists in any dispute. 
 
Susan: It’s certainly something that the SLCC is very keen to promote. We do offer mediation, of course in service issues, and we find that the  

success rate of those is relatively high, consistently. And I think part of that is simply that it is opening a dialogue; that now the client, or the complainer is in a situation where they can see that actually there is a human element to it. It's not just ‘me versus the other person’, but there is a genuine attempt to come together and to try to find common ground. And of course, part of that common ground can be, as you suggested, a very valuable use of apologies in that situation. 
 
Gordon: Yeah, the whole legal research that I saw, again - apologies is a huge field and I was looking at it purely from the civil law point of view. But all the evidence, all the research, all the empirical work that's been done, has been geared toward the information passing to the person who has been harmed or the group that's been harmed, and the benefit to the party who has been harmed. And that is obviously a completely legitimate attitude. I, however, believe this has been greatly underused when looking at the benefit to the person making the apology. 

For the person making the apology, you've made a mess of something. You 

know about this before the client knows about it. And the passion that develops in your own mind - the fear, the anger, the annoyance, the worry -  all of those things build up in the individual's head. And you have to choose the time to tell the client that you've made a mistake, but it's created this huge bubble in your own head - actually making the apology to a client and saying this has happened. As I say, the majority of cases are resolvable in one way or another. There are some that are not, but most of them are. The cathartic benefit to the person making the apology is utterly huge. And I think it's a brave thing to do. And yet there's a huge personal benefit because suddenly the size of the issue that you've declared to your client gets a bit smaller in your mind, because you've acknowledged it and you've told your client. It's of huge value, a 

huge weight off your shoulders because you've come clean, you've told them about it. Again, you may get a mouthful of abuse from your client spitting tacks against you, but at the end of it, it's 

no longer a secret. It's out in the open and you're then thinking: How 

do we move forward? How do we sort it out? And it's a constructive move 

forward at that point. But I think there's a huge benefit to the person 

making the apology getting to that stage. And that takes me back to mediation. Mediation is the forum where somebody can actually do that. And again, mediation has the ability of listening to why the person you're speaking to, the other party, thinks the way they do. Now, you think you may be questioning as to why they could possibly think the way they do, but knowing that's the way they think is a huge benefit to you because you can understand why they're reacting, in the way they're reacting. You may not accept it, but you have a better understanding of where they are coming from. And vice versa, they will have a better understanding of where you're coming from. And again, it narrows the field for the dispute. It humanises it. It's not ‘them and us’. It's ‘a person talking to a person’. It's a fabulous forum, I think there needs to be a huge marketing drive to explain to people what mediation can do. Again, it's not all things. It cannot solve every problem, but it's a forum and because it's confidential, it gives huge strength to individuals to clear the air. And I think that - as a human target or aim -  that's a fantastic one. 

Susan: Yes, that’s interesting. One of the things that we recognise at the SLCC is that of course everybody has the potential to make a mistake and the mistake can be a career booster, rather than a career killer, depending on how you approach it. And that's very true of making the apology. I suppose is a kind of a recognition of what exactly did go wrong but a recognition for the future as well  - of how to avoid a similar situation arising in future.  
 
Gordon: Yes, training – oh we all learn by mistakes! It would be better if we had fewer mistakes and we did more learning, but so much learning is done by doing the job. And, as you, say errors are made. The larger practices tend to have systems where the junior person making the mistake can talk to their line manager, or whoever the next one up is; it can then escalate to the partner in charge of that unit, or whatever. But there's a process. So long as there’s an openness to it. I suppose it could be a career problem if in fact it's the fourth one you've made this month, you know that could be sending a message to your employer that perhaps you're in the wrong job. But these things, the sensitivity that  

you have of making a mistake, and the impact you have… As you say, nobody's perfect. But there's also the fear perhaps of somebody at a higher level making a mistake and having to confess it. Now that's more of a challenge because you've then got peer group opinions as to what you did and why you did it and how you could possibly have got that wrong. So there are again pressures that exist at that level. But you need humanity and empathy at that level and a constructive view of “How do we take benefit from this? How do we draw knowledge from this, going forward? How does it inform training modules? How do we pass that information on?” I remember, I spent a couple of years in one of the Law Society’s complaints committees in the '90s. I would come home after one of these sessions and I'd be doing a note to other members of my practice at that time, saying “Beware of this”, “Beware of that” – the simple things that had gone wrong in the cases I was looking at, just seeing how easily things can just go out of kilter,  and can easily be drawn together again. But just these were overlooked  -  pressure of work. 
 

Susan: A difficult part of practice, but unfortunately, yes, you know one that is with us. But I think that what you've illustrated today is  

that the approach is really so important in dealing with complaints, in dealing with disputes. And that apologies, as part of the complaints handling process can be really, really, effective. I think also that you've that you've said that they should not ever be considered really in isolation. Is that still your feeling? 
 
Gordon: Oh yes, Yes, it’s use of the armoury at the right time. So you have to choose when an apology is made. It can be tactically smart to do it early on and say, “We've made a bog-up here, I’m terribly sorry, let’s sort it out”. Or there can be this lengthy conversation, in which 

perhaps grudgingly toward the end, you say you apologise. But my own experience is that if you get your apology in first (that's a good old phrase there), then it deflates the heat, the bubble of ire and upset. It can only get smaller. It cannot get bigger once you have made an apology. It’s very strong. Where it goes, who knows? But that's why, if a lawyer is advising a client, you have to take the client through that process. But if the lawyer themselves is having to consider what impact it will have on their practice, on their peer group, on their PI cover, 

and their indemnity, insurance premiums etc. You know, that’s why people have PI cover – it’s there because nobody's perfect. But then again, 

that's the essence of trying to nip it in the bud. Of stopping it get to the SLCC, stopping it getting to your door.  
 
Susan: And of course there can also be a distinct cost advantage in doing that early as well. 

 
Gordon: Hugely, hugely, in time-consuming, in management time. Nobody, no 

legal practice, would choose to go through a process which involves either the Law Society or the SLCC or the court process. You know, it's 

the huge value of knocking it on the head early. But again, that’s the art of perfection. You know things do go wrong, things will come to you, and in those circumstances - even if, when it gets to SLCC, the opportunity of getting it mediated should speed the process up and restrict the management time required, rather than staying in your individual trenches and continuing to lob shells at each other. 
 
Susan:  On that happy note, we will invite people perhaps to come out of the trenches and have a look, perhaps, at your website, which we will give on the on the links on the final slide that they’ll find there. 

So, thank you very much, Gordon, for that insight. We found it really useful. And if you'd like to see more from the SLCC, or hear more of our podcasts, please also check out the links. Thank you very much. 

 
Gordon:  Thank you.