Why do we like to win, whether it is a tennis match or an argument with our spouse? Natural selection favored those who survived and reproduced. One of the ways that humans survived, and thus were able to reproduce, was to prevail. Prevailing meant finding food, warding off predators and winning battles over resources with other humans. A human that could successfully throw a spear at a moving animal had a better chance of surviving and reproducing. Today, we call these hunters quarterbacks. Winning battles for territory gained the warriors a great deal of support and admiration from their tribes. Today we call those warriors a football team. Head-to-head combat between special warriors provided both a chance to prevail and macabre entertainment for everyone else. Today, we call that litigation. Thus, when parents separate and are faced with competing for limited resources, that is, time with their children, property and income, 50 million years of evolution is on the table.
Some separating parents appear amicable, cooperative and generous with one another and nicely focused on the needs and interests of their children. Why are these parents not driven to prevail? The answer is they are driven to prevail, but their definition of prevailing is simply different than the parents prone to prevail through litigation. Prevailing for them is reorganizing the family in order to provide their children and themselves with as good a family experience as possible. The “enemy” is defined not as each other but as the new circumstances of sharing property and income differently and raising children well from two residences. In these amicable divorces, the parents have goals with strong subjective value, different from tempting legal goals. They view property and income as tools to be used to shape their futures and time with their children as a tool for creating a successful family experience.
Putting this together, humans have an unquenchable thirst for prevailing, but there can be different definitions of prevailing. Prevailing on long term outcomes is better than on short term gains. When we dangle tempting legal goals in front of people, we are doing them harm. When we help them focus on long term goals, and redefine prevailing as achieving those goals, rather than winning through litigation, we have a better chance of helping our clients. Rather than asking a parent who has provided most of the care to date what type of placement they would like to have, we could ask what type of relationship does he or she want the children to have with the other parent when they are grown. Rather than ask what amount of support does a party want to pay/receive, we could ask what would that parent want both of their financial conditions to be five years down the road. We could redefine what it means to prevail.