In his article titled "Budget cuts lead to dysfunctional family law departments," Franklin R. Garfield's second practice pointer to "family lawyers who participate in the mediation process directly" is to "help the parties put aside their feelings and notions of fairness. Absent an agreement to the contrary, [applicable] law is controlling. The parties' feelings and notions of fairness are mostly irrelevant. The parties have usually shared their feelings with each other and anyone else who will listen on dozens of occasions; sharing them with the mediator is unlikely to advance the analysis. Along the same lines, everyone wants to be fair - or at least everyone says so. But fairness is a subjective concept. Unless the parties have the same notion of fairness, they are stuck with [applicable] law -- whether or not they think it is fair."
I agree with Mr. Garfield that "fairness is a subjective concept." In mediation and other forms of consensual dispute resolution, "fair" is referred to as a "four letter word that starts with an 'F'" because fairness is subjective. What is "fair" to one party involved in a dispute may not be "fair" to the other party. When attorneys, mediators and others are involved in the process, their concepts of fairness may well differ from those of one or both of the parties and from those of the other professionals involved.
In her book titled The Good Karma Divorce, Judge Michele Lowrance, a domestic relations judge in the Circuit Court of Illinois, wrote the following:
In my personal life, when divorced people discover I am a member of the judicial system, they are exploding to tell me how the system has failed them. People want to believe that life should be fair and bad things should not happen to good people. They expect emotional injustice to be righted by legal justice.... The unfortunate fallacy in believing that emotional injustice can be righted by the legal justice system creates anger and feelings of being cheated. This sense of being treated unfairly happens not just in those cases in which there was all-out warfare, but even in those in which disputes were eventually settled. Years after the divorce both groups of people understandably still have enduring bitterness and quiet, brooding grudges.
Judge Lowrance also says that the following is a "detrimental misconception about what really happens in court: Your concept of fairness will approximate that of the judge's. You believe there is a clear-cut non-discriminatory standard of justice that is not dependent upon the judge's personal values."
Among other things, two strong and salient human traits come into play in this misconception. The Self-Interest Bias causes individuals to overestimate what they have positively contributed to a marriage, and what they deserve from a dispute resolution, while at the same time underestimating what their spouse has contributed, and thus deserves. This tends to lead divorcing parties to seek or demand benefits and rights which would seem excessive to a neutral observer, and would likely be opposed in a pre-trial settlement.
Flowing from this, there is the innate human Expectation of Fairness. The notion of "fairness," however, is likely to be profoundly affected by the Self-Interest Bias. Psychological research on these traits reveals that people routinely demonstrate an egocentric bias in how much they have contributed to a collaborative task, versus a collaborator. Similarly, in a dispute individuals systematically overestimate the value of claims brought by them, while underestimating the claims of an opponent. Thus, both divorcing parties may believe that whatever settlements on the table before them are "unfair" to them, and that the only way to obtain "fairness" is to have their day in court!
In short, fueled by a righteous desire for "fairness," divorcing spouses are lured by the illusion that a presumably impartial arbiter -- a Family Court judge -- will be more likely to see "fairness" their way. Unfortunately, whatever their aspirations, judges are human and have unknowable biases. Further, jurists are hampered by conflicting constraints of the law as well as personal biases, and few have had any training in positive or creative conflict resolution. Thus veteran Judge Bruce Peterson comments on the divorce system, "It is amazing to me that the American public has put up with government officials dictating the most intimate details of their lives." He adds, "After watching this process for years, I have come to the conclusion that the time has come to consider taking divorce out of the hands of lawyers and judges and putting it in the hands of the parties and whatever advisers they choose.... We can create a more healing process." In my opinion, well-trained lawyers and mediators could and should be a large part of such a process.
There is a big difference between letting a client know how the proposed agreement might differ from what the law would otherwise provide and advising a client as to the "fairness" of the agreement. Regardless of differences in perception, resolutions can be reached that are "fair" to each of the parties. Does it matter that the reasoning that each party may believe the agreement to be "fair" to them differs? Under such circumstances, does it really matter whether or not their attorneys and/or other professionals involved may disagree? As Judge Lowrance says, "it is a detrimental misconception to believe that your attorney will understand and execute your goals and desires in a way that satisfies your sensitivities and needs."
If the client wants an agreement that differs from what the law might otherwise provide, should the attorney or anyone else be insisting that they instead enter into an agreement that a court would have made? People are allowed to enter into any agreement, as long as it is not illegal or in violation of public policy. Just because the attorney may not have agreed to such terms for themselves does not mean that their client shouldn't. After all, isn't the ultimate choice up to the client? If lawyers do otherwise, aren't they being paternalistic? A great deal has been written about lawyer paternalism, especially in family law.
If the attorney believes that an agreement is outside of the "realm of reasonableness," the attorney should indicate their reasoning in letter to their client. Depending on the circumstances, the lawyer may also request that their client obtain a second opinion in writing. If the client still wants to enter into such an agreement, isn't the attorney protected against the client having second thoughts in the future and coming after them? People should not be prohibited from entering an agreement they want, unless their cognitive reasoning and understanding skills are at issue or the agreement is illegal or in violation of public policy. Competent clients are legally permitted to enter into agreements that others, including their attorney or the mediator, may believe are too outside the realm of reasonableness. That is a liability concern on the part of the professional and should not take precedence over a client's desires. If the professional is uncomfortable, nobody is forcing them to continue their involvement in the matter.
In mediation, should the attorneys help the parties put aside their notions of fairness? Are the parties' notions of fairness mostly irrelevant? Must people have the same notice of fairness in order to enter into an agreement?
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