“This is a civil case. It is about money. Every step of the way is bounded by cost-benefit analysis and proportionality.” Justice Myers in Whitty v Wells, 2016 ONSC 1278
Ideally every step taken is bounded by a cost-benefit analysis. However, sometimes other factors take precedent, including:
- Loss aversion. Loss aversion refers to the tendency to avoid losses over gains. Economist Daniel Kahneman found that losses are twice as powerful as gains, meaning that people feel a loss twice as much as a gain. For example, losing $5 is felt twice as much as winning $5. Therefore, if people view concessions as losing something, then negotiations will stall. “Losses loom larger than gains.”
- Scarcity. If people see something as scarce, they tend to value it more. Accordingly, if people think that an offer is time sensitive, they are more likely to act on it.
- Certainty. People seek out certainty. Daniel Kahneman states that “people attach values to gains and losses rather than to wealth” and people tend to pay a premium to be guaranteed a gain. Therefore, plaintiffs may be more willing to accept less money than what their claim is worth to avoid the uncertainty of court.
- Revenge / Anger. Sometimes revenge is the real goal rather than the need to be made whole through money. Shakespeare brilliantly captures the power of anger in Julius Caesar, Act III, Scene 2, when Antony moves the crowd to action by preying on their emotions. After the death of Caesare, Antony cries out:
Antony. Have patience, gentle friends, I must not read it. It is not meet you know how Caesar loved you. You are not wood, you are not stones, but men; And, being men, bearing the will of Caesar, It will inflame you, it will make you mad: ‘Tis good you know not that you are his heirs; For, if you should, O, what would come of it!…
First Citizen. Never, never. Come, away, away!
We’ll burn his body in the holy place,
And with the brands fire the traitors’ houses. Take up the body.
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