When Fairness Leads to Impasse

by Mark Weiss August 22, 2013

Recently, I worked on a case where the couple suspended the Collaborative process so they could work on their divorce on their own.

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.

What Would You Have Done?

How would you have handled this? What have you found to be effective ways of redirecting the conversation when a client (or a professional) heads down the “fairness” road? Please share what has worked for you.

Comments (4) -

8/27/2013 10:03:22 AM #

Just remember, Mark, that "fair" is a 4-letter word!

View my profile on www.collaborativepractice.com

8/29/2013 7:30:36 AM #

Your point is an important one, Mark, that one person's fairness may be so different from their spouse's sense of fairness that it will lead to an impasse.  Or that a professional's sense of fairness gets in the way of allowing the clients to realize their sense of fairness.

One approach I have used when this impasse happens is to normalize the impasse.  A great tool to use in this approach are the four areas of fairness that I learned when training with Nina Meierding.  

Nina teaches that for people "fairness" falls generally into four categories:

Legal:  Whatever the law says is what is fair to me.

Faith:   Whatever my religious faith says is what is fair to me.

Needs Based:    It is fair that the person who has a greater need gets more.

Equity:     I will know fairness when I see it.

I have had cases where the husband's sense of fairness was based in law and the wife's in equity. And others where one spouse was steeped in faith-based fairness and the other in needs-based.

While the fairness impasse is, I find, a challenging impasse to work through, the first step is to help the clients (or professionals) understand more about the nature of the impasse and to facilitate a discussion about what steps to take once that understanding is present.  I have found that taking these steps is usually enough to get things moving again and the impasse, if not completely overcome, becomes not so daunting.

I hope others will join in this conversation as working through impasse in collaborative cases can be difficult. By sharing tools and techniques on how to overcome these impasses we can really help each other out in our individual work.

View my profile on www.collaborativepractice.com

8/29/2013 9:32:13 AM #

I completely agree that "fairness" is a trap and often explain that fair is a strategy to meet other needs and thus people become entrenched in their "fair" proposal/solution.  I have used the following analogy to try to help clients and professionals understand why "fairness" is not a need.  When I lived in South Africa right as apartheid was being dismantled, the government ordered the public pools to be integrated.  In some towns, instead of integrating the public pools, they simply closed them down.  They argued, well this is "fair" because now no one can swim in them so there is no discrimination!  

So what is really going on here - was the decision to integrate the pools really about what is fair?  I'd say no.  The decision to integrate the pools was about acknowledging the humanity of every person, of treating others with the level of respect and dignity you want to be treated with, acknowledging hurts and harms and making efforts at repair, and the like.

The minute a client mentions the word "fair", even in my first meeting with my client before they hire me, I explore what fairness means to them, why having a "fair" outcome is important to them. I ask them if they think their spouse will agree with them that the outcome they propose is fair. If not, why not. I dig for the deeper needs and ask them if they can imagine other ways of getting those needs met than the one they proposed.

Thanks for the rich discussion!  

View my profile on www.collaborativepractice.com

8/29/2013 10:17:12 PM #

"Fair," I think, can become a point of polarization.  I recently encountered this impasse, and through re-directing the conversation to "getting to yes," our team breathed new life into the collaborative effort.  My suspicion is that "getting to yes" is the sea between the parties' polarized positions.  If named and if then encouraged to grow the sea between positions, that is widen the sea of "yes," the final agreement becomes more likely.

Xana Moore-Wulsin

View my profile on www.collaborativepractice.com

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