Akkermans, A.J.

Hulst, J.E.

DSpace at VU

         Promoting emotional recovery  
Promoting emotional recovery in adversarial personal injury 
compensation procedure 
INLAR workshop The Place of Apology in Law - Oñati, 5/6 May 2016  
Arno Akkermans & Liesbeth Hulst 
Vrije Universiteit Amsterdam - Amsterdam Centre for Comprehensive Law  
         Promoting emotional recovery  
Hulst JE, Akkermans AJ, 
Buschbach S van (2014), 
http://hdl.handle.net/1871/
51947 
         Promoting emotional recovery  
Akkermans & Hulst 
(2014) 
http://hdl.handle.net/187
1/52224 
         Promoting emotional recovery  
The Netherlands 
• Pop. 16,5 mil. 
• Land 33,883 km2  
• 487 inh. per km2 – one of the most 
densely populated countries in Europe  
• Hybrid system of PI compensation 
• Level of protection of stat. system  
quite limited in various ways 
• Tort system always amounts to a very 
substantive addition of compensation; 
• and often constitutes the only source of 
compensation (e.g. non-employees, 
other loss than loss of income) 
 
         Promoting emotional recovery  
 About 50.000 new cases 
each year, only a few 
percent are brought 
before the courts 
 
 About 60% is settled 
within one year, 80% 
within two years, and 
95% within three years. 
About 2,5% remains 
unsettled for more than 
five years.  
PI tort cases in The Netherlands 
0 
10 
20 
30 
40 
50 
60 
70 
80 
90 
100 
0 1 2 3 4 5 >5 
Process duration (years) 
U
n
se
tt
le
d
 c
a
se
s 
(%
) 
         Promoting emotional recovery  
Promoting emotional recovery 
 
• Empirical research: suffering a wrong (also unintentional) disrupts 
moral and emotional balance between wrongdoer (WD) and victim (V) 
 
• Relational: restoration of status 
Being a victim is associated with a threat to one’s status and power  
=> victims want restoration of their sense of power (Schnabel & Nadler, 2008) 
 
• Moral: confirmation of violated norm 
Victims want confirmation of the social values underlying the norm that 
was violated (Tyler & Lind 1992, Okimoto & Tyler 2007)  
 
         Promoting emotional recovery  
         Promoting emotional recovery  
Effective elements of apology by wrongdoer 
 
 
• Acknowledgment of responsibility for wrongdoing and its consequences 
 
• Expression of compassion 
 
• Undertaking of action: compensation and prevention 
 
 
(Robbennolt 2003, 2006, Slocum, Allan & Allan 2011) 
         Promoting emotional recovery  
         Promoting emotional recovery  
 
 Properties of PI claims settlement process: 
• V has to make claim, take initiative, suffer the burden of proof 
• Insurer appears to be able to allow himself a passive attitude  
=> carries across implicit message that not wrongdoer/insurer but V is 
responsible for solving problem of damage caused 
• WD doesn’t pay compensation himself, generally no direct communication 
between WD and V, WD often not even aware of consequences for V  
=> V experiences that WD does not take responsibility 
• Out of court settlement – no decision by judge  
=> no formal establishment of moral responsibility of WD for accident 
• Also no symbolic acknowledgement of moral responsibility of WD by insurer 
• ‘Taboo trade-off’: PI cannot really be compensated by money 
The symbolic message inherent in present PI resolution procedure 
         Promoting emotional recovery  
 
 
 
 
Apologies by 
wrongdoer 
‘Acknowledgement’ 
by WD’s agents 
Two ways to promote emotional recovery 
         Promoting emotional recovery  
Effective elements of apology by wrongdoer 
 
 
• Acknowledgment of responsibility for wrongdoing and its consequences 
 
• Expression of compassion 
 
• Undertaking of action: compensation and prevention 
         Promoting emotional recovery  
Effective elements of ‘acknowledgement’ by 
wrongdoer’s agents:  
 
• Acknowledgment of responsibility for wrongdoing and its consequences 
 
• Expression of compassion 
 
• Undertaking of action: compensation and prevention 
         Promoting emotional recovery  
• Insurer/agent must take and keep initiative in resolution process 
• Behaviour of insurer/agent should carry across implicit message that 
insurer/agent and not victim is the ‘owner’ of the problem that mistake 
was made and damage was caused, which now has to be managed, 
assessed and compensated 
• Resolution process should favour determinants of Procedural Justice: 
– Information 
– Involvement 
– Voice 
– Consultation 
– Respect 
 
The symbolic message inherent in improved PI resolution 
procedure 
         Promoting emotional recovery  
         Promoting emotional recovery  


Promoting emotional recovery in adversarial personal injury compensation procedure

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