Introduction
As most couples approach separation and divorce proceedings each of them desires a fair and equitable division of their property, resources, and parenting rights and responsibilities. Often, each partner is also fearful that they will be unfairly treated by their spouse and the legal system and that they will be victimized materially and emotionally.
Mediation offers significant advantages to couples who have the courage to dialogue with each other directly regarding their conflicts and mutual interests. Judges and attorneys have recognized that adversarial negotiations and litigation in which positions are staked out, defended, and attacked are rarely truly satisfying to either party. While the principle of fairness drives the legal system, the idiosyncrasies of the courts and the relative tactical skills of opposing attorneys often overshadow principle in deciding the real affairs of people.
Couples who mediate can reach creative and individualized solutions to their unique situation. But to do so they must create and then live by their own working definitions of fairness. The law does provide some structure: definitions of marital property, guidelines for what factors are relevant in deciding property division, and minimal standards for child support based on income. In practice, however, any uncontested agreement which falls within very broad boundaries of fairness will probably be accepted by the courts.
In mediation, the parties take on much of the responsibility for deciding how "fair" will be defined for their particular situation. Likewise, each gives up the option of blaming a higher authority for imposing an unfair settlement upon them if either should later become dissatisfied.
Working Definitions of Fairness
Given the issues at stake and the heavy responsibilities which come with empowerment in mediation, it is worthwhile to look beneath the surface of the concept of fairness. The law itself is of little help in this regard since the statutes do not truly define fairness or equity. Instead, they enumerates the factors to be considered in evaluating fairness and direct the courts to use discretion in deciding how these factors bear upon individual cases. The question remains; How do we decide what is fair?
Surveys of judges' and attorneys' attitudes regarding property distribution indicate that most agree that a 50 - 50 split of assets is fair. But reviews of actual divorce settlements in New York and Georgia show that in practice a two thirds - one third, male - female split is closer to the norm. To a large extent fairness is in the eye of the beholder. And each beholder may have difficulty seeing the reality through the lenses of unspoken preconceptions and assumptions.
Fairness and Gender
"But it's not FAIR! is an almost universal childhood complaint in school yard disputes and protestations of parental edicts. Psychologists have noted that American children progress through identifiable stages of moral awareness, moving from a concrete focus on events and rules to an increasing appreciation of more abstract principles as they reach adolescence. Significantly for marital disputes, researchers have also noted that males and females differ in both the premises and actions which flow from their moral sense.
Boys tend to see fairness as the protection of individual rights. For boys, heated playground disputes over fairness are common and are settled (as are judicial trials) by argument and appeals to logic and precedent. Girls are more inclined to view fairness as a process of assuring that their own and others' needs are met. Girl's tend to play cooperative, interactive games with less striving and competition. Disputes are minimized and more likely to be resolved by persuasion and appeals to a spirit of cooperation than settled by argument.
To oversimplify only a little, men are prone to assume that fairness means that rights are asserted to protect one's independence and maintain a level playing field. Women, on the other hand, may assume that fairness means that the needs of all should met before focusing on an individual's rights. Needless to say, there are ample opportunities for gender related misunderstandings about fairness even without the fear, pain, and the foreboding sense of a final reckoning which often pervades divorce negotiations.
Fairness and Self Absorption
The ending of a marriage and the new beginnings which follow are a profoundly difficult time for both spouses independent of whether they expected, initiated, sought, or fought the dissolution of their bonds. Self absorption is a natural human response to physical or emotional pain. In times of pain and self absorption our ability to stand back and look at the big picture or to see the viewpoint or acknowledge the pain of another is often temporarily but severely limited.
The spouse who is left often feels abandoned and victimized by the spouse who initiates the rift even when deception and infidelity were not present. The spouse who leaves frequently feels, rightly or wrongly, that they were driven out by the insensitivity, selfishness, or exploitativeness of their partner.
Compensation for wrongs is part of fairness. In North Carolina, for example, substantiated adultery as well as other aggravating factors are recognized in the law as meriting compensation in the form of alimony. But in the majority of no fault divorces which are appropriate for mediation, no outside moral authority assigns guilt and compensation. Thus, most couples must struggle through their hurt and resentment in order to reach a working definition of fairness without punishment which each of them can accept.
At a time of vulnerable self absorption a spouse may confuse his or her need for fairness with a need for reparation and compensation for emotional wounds. Since only time and one's own healing process can resolve the wound, this confusion may complicate and prolong negotiations.
Fairness: Needs and Rights
Since the introduction of no fault divorce and the burgeoning of mediation and other alternate dispute resolution methods, domestic law has moved from an emphasis on rights to include greater recognition of the needs of the ex-partners and the children. Thus spousal support may be a legitimate need even in a case where no wrong or injury to the spouse justifies alimony as compensation.
In this way, the law, traditionally a masculine endeavor, has recognized an approach to equity which legitimizes more typically feminine assumptions and principles of fairness. Fortunately or unfortunately there are few formulas for balancing needs and rights.
Since women typically have less economic and earning power than their husbands, the legitimizing of a focus on needs as well as rights might be seen either as favoring women or as reversing long standing societal discrimination against women. In actuality, focusing on needs is empowering to men as well as women. A party who is vociferously protecting and asserting his or her rights sometimes loses awareness of their own needs. And, in a battle over rights, either spouse may be fearful of expressing legitimate needs for fear of appearing weak or "one down."
Fairness and Parenting
At least initially, children rarely feel that there is anything fair about divorce. Their reactions to the break are most often confusion, fear, and anger over the loss of stability, familiarity, and unlimited access to both parents. This is true even in situations where there was strife and conflict in the home. At such a time of crisis, children need their parents' attention and energy just when the parents are most drained and overwhelmed by their own reactions to change and loss.
To be truly fair to their children, divorcing spouses need to recognize that the children need them to maintain a relationship as civil and cooperative co-parents regardless of their disagreements and rancor in other areas. This recognition can be a catalyst for a constructive approach to other conflicts when the parents realize that when they approach disputes with a win - lose orientation the children are inevitably on the losing side.
Steps to Achieving Fairness
A mediator works in collaboration with the divorcing couple to reach an agreement which they will view as fair. He or she does this by encouraging the mediating parties to articulate their needs, their feelings, and their beliefs about fairness. He or she will encourage them to take the long view, asking themselves whether an agreement will still seem fair viewed from the perspective five or 15 years in the future.
Because divorcing couples sometimes rush to agreement in hopes of avoiding painful, conflict laden topics, a mediator may slow the couple down and encourage fuller discussion of difficult issues. Haste might result in the eventual collapse of a premature agreement.
In light of the factors listed above there are a number of specific steps which the parties to a mediation can make to increase the fairness of their agreement.
- Keep in mind that your partner's view of the world and perhaps of fairness differs from yours due to gender differences and unique life experiences. Disagreement and conflict are an inevitable and potentially constructive part of negotiation. Rarely are they reflections of ill will or bad faith. Active listening (rephrasing what the other has said) with the coaching of a mediator can often clarify misunderstandings
- Separating couples sometime strive to maintain an unrealistically congenial relationship to protect themselves and their children from the intensity and rawness of their hurt and anger. Intense negative feelings usually "leak out around the edges" and may distort ones perspective and sabotage negotiations without direct awareness. Mediation is conducted in the spirit of cooperation and mutual respect. This includes the honest, non-abusive expression of anger and hurt. A mediator will encourage and help modulate expressions of strong feelings. Often such feelings, once acknowledged by the other spouse and the mediator, can be put aside for the course of the mediation even if they cannot be fully resolved.
- Any agreement which does not truly acknowledge the needs of both spouses ultimately diminishes each spouse. A mediator will encourage both spouses to express legitimate needs rather than focus exclusively on rights. All legitimate needs cannot be met but they can be acknowledged. Recognizing and addressing the needs and vulnerability of someone who has wounded us is a path toward healing our own wounds.
- Separating spouses frequently are concerned that the other will escape with more than their share of the common resources and less than their share of the sacrifices and losses. The most likely reality is that both spouses suffer material and emotional losses. Both party's losses can be minimized if the couple work cooperatively at the time of property distribution. A mediator will encourage detailed and practical discussion of each partner's plans for post separation living before final decisions are made on financial and parenting issues.
Conclusion
Dissolving a marriage involves loss and emotional pain. One's own losses and pain rarely feel fair. Mediators can assist couples first, to minimize their losses to those which are inevitable and necessary and second, to maintain or develop a continuing, effective relationship as co-parents.
Hopefully, this brief survey of the key issues which effect our perceptions of fairness will provide some understanding of how important decisions are addressed in mediation. It may assist you to avoid some of the common pitfalls encountered during the negotiation of separation and divorce.
