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If I Were a Rich Man–and Other Strategies for Appealing to the Wealthy Defendant in Mediation

by Jan Frankel Schau
May 2017

Jan Frankel Schau's Mediation Blog

Jan Frankel Schau

There was such an interesting article published in last Sunday’s New York Times called “Getting the Wealthy to Donate” by a doctoral candidate, a professor of Psychology and an associate professor of behavioral science, Ashley Whillans, Elizabeth Dunn and Eugene Caruso. Their studies demonstrated that wealthier people are far less likely to donate to charity if the appeal comes as something “for the greater good”. Instead, it was only when the charitable gift was framed as “an opportunity for individual achievement” or “taking individual action” that the wealthier people donated generously.

I’m struggling to find the applicability in mediation here–but I think one possible use is this: when the wealthy Defendant is exceedingly reluctant to “do the right thing” by paying a Plaintiff for the wrongs that his Company caused, perhaps it would be smarter to appeal to his sense of “stepping up to personally make this right”. For example, where the Company (or it’s employees) have engaged in discriminatory conduct by failing to accommodate a nursing mother upon her return to work, if the CEO is asked to pay $100,000.00 so that the women of the Company understand that this Company will not tolerate such misconduct, the appeal may fall on deaf ears. However, if the same CEO is invited to “step up and make an individual decision that he won’t allow such conduct to occur and that he is prepared to put $100,000 towards his individual commitment to ensuring that his company takes care of this employee if they’ve been treated wrongly”, that may work.

The article ends with an amusing quote by behavioral scientist, Christopher Bryan, who said: “We’re often so focused on getting people to do the right thing for what we think is the right reason, we forget we just need to get them to do the right thing.” I’d say the same is true in settling lawsuits. Whether you are appealing to “the common good” or “an individual’s personal achievement” matters less than that you get the job done and the case settled.

Your thoughts?

Biography


Attorney Jan Frankel Schau is a highly skilled neutral, engaged in full-time dispute resolution. Following a successful career spanning two decades in litigation, she has mediated over 700 cases for satisfied clients. Ms. Schau understands the nuances of trial and settlement practice as well as client relations and balancing the needs of their representatives with the risk and expenses of trial. Those who have used Ms. Schau’s services recognize excellence in her persistence, optimism, creativity and integrity.

Ms. Schau was the President of the Southern California Mediation Association in 2007 and is recognized as among the most outstanding mediators in Southern California in the mediation of civil disputes by her peers and clients. She also serves as a Trustee of the Board of Directors of the San Fernando Valley Bar Association, and has presided as Chair of it’s Alternative Dispute Resolution Section and Litigation Section. She holds a Certificate of Advanced Skills in Negotiation from the Straus Institute for Dispute Resolution of Pepperdine University as well as from the Western Law Center for Disability Rights at Loyola Law School.



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