When it comes to settlement, sorry seems to be the hardest word

Article 22 February 2022 Experience: Media and reputation

When it comes to settlement of a legal complaint, it may not be the dollars that are the sticking point, but the words of regret needed to seal the deal.

In litigation, two parties’ positions are often diametrically opposed, with one party in the red corner, the other party in the blue corner battling it out. When they come out fighting their positions can become even more entrenched, but if settlement is to be achieved, it will require a skillful trainer to find some middle ground in the center of the ring, enabling the parties to avoid trial and settle their differences – at least ostensibly amicably – out of court.

When one party has agreed to put their hands into their pocket and pay up, the precise number on the bottom line may not be too difficult to agree. The sums changing hands in the Prince Andrew and Virginia Giuffre case may be undisclosed, but are likely to be significant.

But equally significant to the “receiving” party, are the words which accompany the settlement sums – the extent of an apologia, the tone of the regret, and the method of communication may all prove stumbling blocks on the road to settlement.

Prince Andrew paid for his relationship with Epstein with his reputation; he has paid for settling the litigation with cold, hard cash. The financial award aside, the reward for Ms. Giuffre has likely been the extraction of words of regret from Prince Andrew. Given he has throughout unequivocally denied any liability, consistent with that position the settlement statement could offer no actual, apology. But while “apology” denotes personal guilt or liability, its close relative “regret” seems to express a view as if from a bystander – while I don’t accept any liability, I am sorry that this happened to you.

The relatively short “no sorry sorry” statement from Prince Andrew offers an expression of regret for his former association with Epstein, an acknowledgement of Ms Giuffre’s suffering, a commendation of her bravery as a victim of assault in standing up for herself and others, and an assertion that he never intended to malign her character. It is likely as valuable to her as however many zeros will be paid to her, and to her charity.

To achieve a mutually acceptable settlement, legal advisers need to be able skillfully to walk their clients from their respective, rooted positions to a territory that doesn’t really exist, a world between their two worlds where both can feel that they are, and appear to be the victor. In this case, the parties have landed on the shores of a territory acceptable to them both, not named “apology”, but “regret”.

In related news…

Amber Melville-Brown is frequently sought out to comment on The Royals and was widely quoted on Prince Andrew’s settlement of a sexual abuse case with Virginia Giuffre.