I’d say that virtually 100% of the time, the parties I meet with tell me they want things to be fair. It’s a lofty goal, because the decision to end the relationship almost always starts out one-sided. Someone is clearly driving the divorce bus, at least at first. So I’ll ask the bus driver, “what’s your definition of ‘fair’?” And then I’ll ask the passenger the same question. “An equal division of our assets and of our liabilities” is by far the most popular answer.
Aha! But “fair” and “equal” are two different things. Equal is math. Divide by two and you have equal. Fair is a perception, and it’s up to me to ferret out each party’s contextual definition. Many times, the party who perceives herself as being wronged thinks she’s entitled to more than 50% because, “it’s only fair, since he’s the one who wants the divorce.” And sometimes a cheating partner will assuage guilt by making a proposal to give the other a more than equal share. Think about it and I’m sure you’ll agree that “fair” looks different to each person.
What might be a slippery slope for a divorce and family mediator to navigate isn’t necessarily so because it’s my job to help each party understand the other’s definition of “fair.” It doesn’t mean they have to absolutely agree about the definition. It merely means they have to understand what the other person is saying. Yet this is often more challenging than it might seem. My first step is to help them really listen to each other, and let’s face it, if they were terrific at communicating, they probably wouldn’t be ending their relationship.
If it seems to me that each party is more concerned with what he/she is going to say next than with actually hearing what the other is saying, I often employ a technique or two to assist. One tool is to ask the alleged listeners to repeat what they just heard the other say. If it’s correct, bravo, and if not, try again. Another, more drastic method, is to ask the parties to literally switch seats and speak in the other’s voice. Pretend you’re “Lisa” and in her voice, tell “Chris” what you think is fair, and why. Although the role reversal is usually met with some nervous laughter, the point is well taken, and the goal of understanding is nearly always achieved.
If you think a judge will decide what’s fair, think again. A judge will apply the law and legal precedent to your case in what he or she perceives is fair. And the judge’s perception of what’s fair may be vastly different from yours.
Let’s not forget that a court battle usually results in a winner and a loser. On the other hand, a mediated settlement agreement reflecting the deals made by the parties themselves results in a win. Why? Because they came to their own understanding of what’s fair in their unique situation.