> When Fairness Leads To Impasse

Posted on August 30, 2013


From Mark Weiss, Esq.:

The Wife Was Being Fair

My client, the wife, asked that she experience no financial repercussions due to the divorce. After all, it was only “fair” that she not bear the consequences because her husband had cheated on her. By making sure that her husband would still be able to afford a reasonable lifestyle, she was being fair. Her friends all agreed that she was being more than fair to her husband after what happened.

The Husband Was Being Fair

Her husband proposed a settlement that would likely be better than a litigated outcome. After all, he wanted to be “fair” and even generous. His friends all agreed with him that his wife should be grateful for his generosity.

Did Fairness Get Them Stuck?

Left to their own devices, the couple volleyed offers and counteroffers, each a variation on the last one … until they realized they could not reach an agreement.

How could this be? Our clients were each trying to be “fair” yet somehow unable to resolve their disagreement. They even checked their thinking with their friends. How was it that their attempts to seek fairness (and even consider the other in their proposals) did not help?

Here’s a radical thought: Is it possible that seeking “fairness” could have contributed to their impasse?

Fairness and the Clapham Omnibus

Like many Collaborative lawyers, I have seen negotiating parties get stuck when they or the professionals label something as “fair.” One theory I have is that fairness is often believed to be a positive character trait. Hardly anyone believes themselves not to be fair. The resulting thinking goes something like this: If fairness is a mark of character, then (a) the proposals from someone who is fair must also be fair, (b) my proposal is fair, and (c) the fairness in my proposal is objectively ascertainable.

Ask ten different reasonable persons on that famous Clapham omnibus what would be fair to propose in any negotiation, and you’d likely get ten different proposals. Even then, there can be no assurance that any of these ten proposals would be remotely acceptable to the other party to the negotiation.

In this case, as soon as each party declared one’s own proposal to be “fair,” the other’s proposal became less than fair. And immediately the other person also became unfair. By wrapping their proposals in fairness packaging, the parties’ personal animosity increased and both became more entrenched in their positions. Is it any wonder this couple was unsuccessful negotiating on their own?

The Trap for Professionals

Professionals too can step into the “fairness trap.” We can easily slip into deciding for ourselves what might be a fair outcome in any situation. At least for lawyers, making these decisions may even be what we are wired to do. In my anecdotal experience, when professionals believe we know what is fair, we can become just as stuck as the couple was in this case.

Fortunately, when this couple returned to the Collaborative Law process and asked what was fair, the question was redirected into a discussion about what was important for each to accomplish in an agreement. After developing needs and interests and discussing options, they ended up reaching an agreement.