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III.             VALUING THE INVALUABLE  

A great part of the mediator’s task is helping the parties value losses for which there is no common metric. The desire to quantify losses in a numeric fashion against a standard metric has resulted in the publication of hundreds, if not thousands, of academic articles attempting to further “standardize” the irrational process juries bring to the valuation task. [1]

Recently, a highly influential law review published an article suggesting that “lost welfare” or well-being value for the death of one’s spouse might be “rationally” calculated against a hypothetically constant monetary value that a widowed individual would be willing to pay (the “WTP”) to avoid a spouse’s loss of life. “Because studies show that married people are happier than unmarried people,” argued the authors  

and that this happiness is in part a result of emotional closeness and companionship . . . the difference between the happiness of a married person and a widowed person can be quantified using simple scales based on subjective assessments of one's emotional well-being. To [determine what a person would be willing to pay – the “WTP”] to avoid grief from a spouse's death, one would need to (1) determine the average length of time that the grief persists (for example, until remarriage); (2) find an equivalent happiness difference in an area of life that has been reliably monetized (for example, WTP to avoid disease or depression);   (3) convert this difference into annual units; and (4) multiply (1) by (3). [Because married people] ha[ve] a level of self-reported happiness equivalent to that felt by a widowed person who receives an extra $100,000 per year . . . , [i]f the average number of years before remarriage or the "natural" termination of the original marriage (from divorce, or normal mortality) is, say, five years, then the . . . loss [of well-being for the surviving spouse] is equivalent to about $500,000.” 

Though the article at issue represents a laudable attempt to formalize and standardize a jury’s tendency to operate without any real guidance, the suggestion is an attempt to prevent the jury from doing that which only it can effectively do

1. act as a collective conscience and “gut feeling;” and,
2. weigh the nearly infinite number of variables pertinent to the valuation of loss and punishment for breaches of the minimal standards of care we expect in our civil relations with one another. 

Among the variables a jury will bring to bear on its decision to recompense plaintiffs for their injuries are the credibility of the parties (and their counsel); the coherence and appeal (believability) of the conflicting “stories” told by the parties[2]; the apparent balance or imbalance of power between the parties (i.e., the relative responsibility of all parties to the dispute); the type of social ill being addressed; the severity of the harm caused; the historical context in which the injury occurred and, the moral or political issues highlighted by the dispute.

  Once the opening legal skirmishes among counsel have been completed and the case is ready to be settled or tried, every “irrelevant” detail that has been stripped from the parties’ lived experience, must be put back into place. It must be given life again; made three-dimensional and its causes multi-determined, displayed in all of its particularity, texture, subtlety, nuance and drama.