Center For Cooperative Divorce

By Irving H. Zaroff, JD LMFT and Dana Schutz, MA LMFT

I know the world isn’t fair, but why isn’t it ever unfair in my favor?
~Bill Watterson

One of the key motivators for couples choosing mediation in divorce is the fear that in litigation they will get the short end of the bargain. Court battles are generally win/lose or lose/lose. They’re seldom win/win. When we ask participants what are the important standards used to judge a settlement, they mostly say, “I want it to be fair.” When both parties in negotiation leave with a feeling of fairness, they are more likely to comply with the terms reached and less likely to seek modification later

So, it might be of value to have a sense of what “fair” means. As it turns out fairness is quite subjective and dependent on the person’s perception of the agreements. There actually is a science that studies such things in a range of areas including politics, law, and social interactions. While an in-depth review of the technical side of “fairness” is beyond the scope of this little article, a couple of the findings are interesting.

Fairness depends not only on a final agreement, but is also influenced by how the agreement was reached. This is where the skilled mediator is helpful in creating a process that ensures each party has a strong voice, maintaining mutual respect for each idea presented, and facilitating a civil tone during meetings.

The criteria for deciding if a solution is fair may involve a balance of the two main theories of fairness: equality and merit. In equality, fairness means each gets exactly the same. In merit, the division is based on a combination of contribution to the marriage and the needs of the individuals. Equitable division is usually more suitable than “equal” division. The cost of determining equality is usually high, maybe higher than what is to be divided (forensic accountants, appraisers, etc.). An equitable division looks to provide adequate means going into the future. It focuses on both “how the marital estate got here” and “how can it help move parties forward.”

When individuals feel their contributions are acknowledged and their needs will be met, the result is usually a win/win.