It is very difficult to settle complex, multi-defendant litigation on a group basis, notwithstanding the advantages of a group resolution, if there is no clear way to allocate responsibility among the defendants. A principal reason is what may be called “relative value” obstacles. In his best-selling book, “Predictably Irrational: The Hidden Forces That Shape Our Decisions,”1 MIT economist Dan Ariely explains how powerful “relative value” is in decisionmaking.
One example is the wildly escalating effect that publication of executive and professional compensation has had in recent decades.2 One prominent mediator3 called this phenomenon “counting other people’s money”—measuring one’s own deal in terms of others’—and it goes beyond envy; it also involves our natural tendency to compare the easily comparable. As Ariely points out, with examples including shopping for houses, ordering magazines online, and selecting a possible romantic interest from a group of photos, “we not only tend to compare things with one another but also tend to focus on comparing things that are easily comparable—and avoid comparing things that cannot be compared easily.”4
