Introducing Apology Legislation in Civil Law Systems. A New Way to Encourage Out-of-Court Dispute Resolution

Abstract

This article addresses a way to support out-of-court dispute resolution which has not yet been considered in civil law systems: the introduction of apology legislation. Apology legislation encompasses a combination of statutory provisions that reduce or remove the adverse legal consequences of apologizing. The idea underpinning this device is to create a safe harbour in which people do not feel inhibited to apologize. This is based on the premise that once an apology is tendered, parties will come to an amicable resolution of their conflict more likely and more easily. The first apology act was introduced in Massachusetts in the US in 1986. Since then, the phenomenon has spread throughout the common law world (Australia, Canada, England and Wales, Scotland, Ireland and Hong Kong). Civil law systems are a remarkable blind spot in this continuously expanding field. Very few scholars have endeavoured to explain why this type of legislation has been enacted in common law systems and not in continental Europe. This article claims that there is no real difference between both legal traditions when it comes to the need to protect apologies, as the evidentiary consequences of apologizing are roughly equal. The current lack of apology legislation in continental Europe may be explained otherwise. First, on a substantive level, there is less emphasis on tort law and private claiming than in many common law jurisdictions. Second, on a procedural level, civil law systems are less familiar with legal rules prohibiting the use of specific items of evidence, whereas common law systems have enacted a comprehensive system of exclusionary rules. Notwithstanding those differences, this article submits that a case can be made for introducing apology legislation in civil law systems. Apology legislation is a cost-effective tool that might serve the policy priority of resolving conflicts through alternative methods of dispute resolution rather than trial. It might affect an earlier stage in the emergence of a dispute than other ADR-mechanisms. Finally, it has the advantage of avoiding mischaracterization and thus righting the wrong perception that it is better not to apologize.