Comments by Divorce Mediators, Therapists and Attorneys

I love writing my blog. I have been amazed by the response I have received. Therapists have contacted me to get permission to use posts with their clients. Posts get republished on popular sites like the Good Men Project. Articles are shared by divorce mediators across the social media world. The most fun are the discussions they have generated on LinkedIn groups. Unfortunately, comments posted on LinkedIn cannot be linked to the comment section on my site. It is very unfortunate as some of my readers would enjoy the conversations. So, I thought it would be interesting to share comments generated from one post titled: Is All Fair in Love and War? Most comments are from divorce mediators and other dispute resolution professionals from around the world. I hope you enjoy.

“Clients don’t want to be “fair”. Mediators want to be “fair”. Quite often attorneys want to be “fair”. Clients want to win. Period. And they don’t want their attorney trying to talk them into being “fair” if they think the other party is out to “win”. They will think less of their attorney, and rightfully so, if that is the case.”Emmett Raitt

“Not sure if I agree, Emmett. When folks come to mediation they are trying to avoid a zero-sum game often (and yes, time and money). I find that fairness often (not always) is one of the underlying interests of parties in mediation. Also, I don’t approach a mediation as trying to accomplish fairness — that’s not for me as the mediator to judge. Fairness is about the party interests, regardless of my personal beliefs. I am not an attorney and certainly agree that if a client hires an attorney to “win” than winning trumps fairness in that scenario.” – Ben Stich

“A client never hires an attorney to do anything else. And I agree that a mediator is not generally interested in fairness; they are more interested in resolution. But they are in a much better position to advocate fairness than either the clients or their counsel.” – Emmett Raitt

“Thanks for the article Ben. It is good to remember that fairness does not always mean equal.

I also want to kindly disagree Emmett. Sure, some people want to “win” – or at least they think they do in the heat of a moment. But sometimes I imagine people hire lawyers to protect themselves from losing. Quite a different thing, in my mind. Also, I don’t think a mediator should “advocate” anything. Having been an advocate in a prior life I experienced firsthand the important difference between advocating on behalf of someone and providing them the necessary support to advocate for themselves.”Sam (Cynthia) Mekrut

“The word “Fair” is really a reflection of someone’s perspective rather than their truth. As a mediator, I prefer to implement the word “Logical” and kindly facilitate the process to accomplish it’s true meaning during the session. In the end, a resolution is found based upon what seemed “Fair,” but was actually “Logical.””Amanda Burney

“Hi Sam and Amanda.

Sam, you wrote “But sometimes I imagine people hire lawyers to protect themselves from losing.” While I agree there are times that definitely is true, I also believe, as you do, that people also want what they want because they have, without other input, created their own definition of “fair.” Sometimes that might actually be mutually serving and other times it is entitlement.

Amanda, you wrote this well — Fair is really a reflection of someone’s perspective….

I hope you have had success (because I haven’t), and I’m sure you have, with using the word logical. We’re all emotionally-driven and logic for most people is still rooted in perspective and self interest.”Michael Toebe

“Agreed…Fairness is rooted in someone’s subjective perspective…in other words, to use mediation vernacular, their interests.”Ben Stich

“After 30+ years of mediating, I’ve learned never to use the word “fair.” Early in my career, I mentioned that we would try to get to a fair agreement. The couple agreed on terms they found “acceptable” and I thought it was fair, but the wife turned too me and said, “Laury, I thought you said our outcome would be “fair.” That word usually means different things to each client. Sometimes clients agree to terms to avoid continued conflict, but they may not think the results are fair. Now, I try to have clients set more realistic expectations by saying, “We’ll try to reach terms that are mutually acceptable even though they may not be completely satisfactory.” This seems to work better.” – Laury Adams

“Thanks Laury. I agree — don’t think what you’re saying is inconsistent with my post — more about semantics. I never suggest parties work towards “fairness” in a mediation unless they state it as an underlying interest (and interestingly it comes up quite a bit). And as you said, and was one of the ideas of the post, fairness is subjective — all in the eye of the beholder. I frame it, similarly to you, as coming to decisions that they can both live with…” – Ben Stich

“Virtually ever one of my mediation clients comes in saying “I just want to be fair”. So the first thing we do is go to Webster’s and I read them the definition of “Fair”. – “Marked by impartiality and honesty, free of self interest, prejudice or favoritism”. I then ask each of them – “So will either of you be free of self interest”. Most of the time they agree they can not. So I say, good, so lets not worry about the agreement being fair. Instead lets focus on does it work for each of you. If so, then it really doesn’t matter if it is fair or not.” – John Hurst

“Since fairness is so subjective, would our clients want to subject themselves to a judge’s idea of fairness? Before ever going to court, I suggest clients sit in the judge’s courtroom to find out what he/she thinks is fair. Gives clients incentive to work harder in mediation.” – Laury Adams

“Bottom line, fair is what works best for the family and what is doeable financially. Getting passed the, I want to stick it to you, and getting to what’s fair is a leap that couples are willing take, rather than risk court imposed decisions.” – Lorri Urban

“Laury — have you had clients actually go to court to observe to get a sense of his/her definition of fairness? Or, do you suggest it to just make a point?” – Ben Stich

“A few have done so and others wish they had known more about their judge. Would you believe…..I had one man come in for mediation and admitted he found out to which court he was assigned, then looked to see what attorney had made the most contributions to that judge’s campaign. That’s the attorney he hired. No so dumb! He had a good alternative to mediation!!!” – Laury Adams

“Wow….good for him for going through all that trouble, and still sticking with mediation. Thanks for sharing that story!”Ben Stich

“Great article. Nice engaging writing style! And yes, I totally agree that equal and fair are not synonymous when it comes to property division, notwithstanding the law here in the community property state of California which says a judge must equally divide the assets and debts. In nearly all other (equitable division) states, a judge has latitude to come up with a fair division that is other than 50/50.

It’s one of the reasons that mediation is often a wise choice for a divorce here also: you can focus on what would be fair and workable for the short and longer term for both spouses rather than leave it to a judge who is required simply to chop the property in half.”John Morrison

“You make great points, Ben. Fair and equitable is likely to be each person getting some of what they need, not necessarily half of everything. This is especially true in divorce situations where there are limited resources (for example time with children). Ideally, getting to fair and equitable involves creative problem solving that allows for all parties to get some of what they need so that the family can transition as smoothly as possible to two households. Mediation and collaborative divorce are two ways that encourage such creative problem solving.”Lisa Gabardi

“Thanks John and Lisa for reading and commenting — I think we see the world in similar ways!”Ben Stich

“I think it’s important to point out that “fair” and “equal” are two separate concepts.”Nancy Gabriel

“Absolutely, but unfortunately many equate the two. Thanks for reading the post, Nancy!”Ben Stich

“I agree with the concept. Any thoughts on helping making the differentiation to the spouse that has already made up their mind that equal is fair?”Joseph Embery

“I think it’s about helping folks move from positions to interests, and then helping parties generate ideas that can meet as many interests as possible. Convincing someone of the merits of fair does not mean equal can be helpful in some circumstances; however, focusing on the interests, and engaging in a lot of reality testing, is often more helpful in my experience. What do you think?”Ben Stich

“Hi Ben, I enjoyed reading this article. Thanks for sharing. I just shared it on Facebook and Twitter.”Wanda Wyatt

“I like the idea that fairness is not about splitting things down the middle as much as it is about giving each person an equal chance to get what they most need to be successful in life. What a smart approach. Thank you for your article. Is this the trend among mediators or a new concept?”Karin Flodstrom

“When a couple is angry, “fairness” seems to be low on their list of things to focus on! “Equitable” is a much better word, but one that is underused when thinking about relationships. Unfortunately, the couples I see are often in the mode of ” he got more sprinkles on his piece of cake” rather than “I don’t like cake anyway, so let him have the cake and I’ll take the chocolate.” Moving couples to this point of view can take real effort and therapeutic work, I think.”Susan Blumberg

“Thanks Karin and Susan. To answer your question, Karin, I think this idea is at the heart of effective mediation. A good mediator will help parties move away from their hard and fast positions to talk about their interests (their hopes, dreams, fears, needs, etc…). When parties talk about their interests it is far easier to come up with solutions that both parties can live with. The alternative, debating positions (I want the house v. no, I want the house), is untenable and leads to a zero-sum game. Is this helpful?”Ben Stich

“Fair does NOT mean equal.’ Very, very well said, Ben!”Mark Baer

“Thanks Mark! I initially starting thinking about Fair does not mean equal in context of public school and education, but it applies to so many parts of life!”Ben Stich

“Ben, another area in divorce that should not be viewed as “fair’ is child custody. There are many aspects when considering what is the best interest of the child. Splitting time 50-50 is not always in a child’s best interest.”Ann Marie Termini

“For sure — in fact, I think it’s the exception more than the rule that fairness in all aspects of divorcing issues are equal (certainly there are exceptions).”Ben Stich

“Great article Ben. So true. I almost always use the “fair does not necessarily mean equal” discussion with my divorcing clients, and especially when describing why court’s use a pro rata division for child support and child-related financial expenses (absent mutual agreements to the contrary.)”Sheri Russell

“Thanks Sheri — so interesting that we use similar descriptions!”Ben Stich

“Ben could relate to your comments. Just is more important then equal. I attempt to ge couples to realize, especially if there are children, that hurting your ex-spouse financially is usually not in the best interest of anyone. Two adults who can support themselves and the family is best for stability for all members.”Bob Bartlett

“No question about it, Bob! Thanks so much for reading and commenting.”Ben Stich

“When your emotions take over it is very difficult to make any rational decision.”Brendan Paul

“Absolutely, Brendan. I would suggest that big decisions should never be made when emotions take over…just like emails shouldn’t be written, text messages sent, etc. Very few decisions can’t be made at a later date after tempers have cooled.”Ben Stich

“Well said Ben Stich cooler heads will prevail.”Brendan Paul

“Ben, this was a really great article. I really like your guidance about how to think about finite resources and their usefulness to each party rather than concentrate on the finite resources themselves.”Ann L-B

“Thanks Ann — for reading and commenting!”Ben Stich

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