All's Fair in Love and War: Or is it?

One of the oft heard phrases in divorce mediation is “I want what is fair”. It’s a paradox of sorts as it is hard to argue that one party should settle for something that is not fair while, at the same time, it is difficult to define what is, in fact, fair. The person who makes this statement has no trouble with it, as he or she is firmly convinced of what is fair. However, fair, much like beauty, is in the eye of the beholder.

In mediation, parties are often encouraged to generate solutions. This is particularly true in divorce, where issues such as time sharing with children, are better decided by the parties as opposed to a Judge who has never met their offspring. This is also true of dividing assets and liabilities as a Court’s approach to simply split everything may not work for the unique situation at hand. But what often happens is that, rather than discussing options, one or both parties become fixed on a particular position, based on the notion that it is the fair or right way to handle things. The party or parties who do this become what I refer to as “the arbiter(s) of fair.” Should the other party reject this proposal, then the conclusion is that he/she must be unfair.

Unlocking the gridlock is often a mediator’s challenge. In order to do so, one must look beyond the position taken by the parties and get to the heart of the matter. In essence, what are a parties motivations, or, more properly phrased, what are his/her interests?

Interest based negotiation is especially crucial in divorce mediation. Often, parties become stuck on a particular position, i.e, I must keep the house, I want to spend 50% of the time with the children, etc. The parties position is often based on what this particular asset or issue represents to that person. Keeping the house may represent security and insistence on joint custody may represent an underlying fear of not being involved in the children’s lives. However, there may be another solution that addresses the concern. For example, a party may be able to remain in the home for a period of time or may realize that there is greater security in reducing the expense associated with a home that has now become too large. The parties can also work out a schedule that allows for ample quality time between the children and both parents, without looking at percentages.

Divorce mediation is, quite possibly, the most stressful negotiation possible given the high level of emotion and fear. It is not a far journey from fear to insistence on what is fair. Rather than question the determination of fairness, a mediators role is to help the party uncover the interests that are at stake. By uncovering these interests, it is entirely possible to arrive at a solution that is fair to all concerned.