Ten Traps Series – Trap #5

In review, we have pointed out how the family law system unintentionally traps people into making poor decisions and have detailed four of those traps: Trap #1 – distracting people from their life goals into thinking that legal outcomes are goals; Trap #2 – treating divorce as a zero sum game; Trap #3: the system assumes disputes and seduces parents into thinking the same; Trap #4: treating children as property.

Trap #5 originates from a core concept in the legal system that two sides of an issue are presented as well as possible to a neutral party, the judge, and the result is a fair decision.  In criminal law, the state selfishly tries to prove that the alleged criminal is at fault and should be punished while the alleged criminal tries to prove innocence.  In contract law, each side selfishly tries to prove their position is the correct one.  In injury cases, one side selfishly tries to prove liability and the other side selfishly tries to deny it.  In family law, the divorcing parties selfishly try to prove that his or her position on a legal issue is the right one.  In short, separating/divorcing parties are trapped into thinking that selfishness is the best strategy.  Given that about 90-95% of all family law cases settle without a trial, the trap compounds the problem by introducing selfishness as the best strategy for settlement negotiations.  Experience tells us that the worse divorce cases are those with pathologically selfish parties, so why have a system that promotes selfishness as a negotiating strategy?

Game Theory informs us that selfish strategies in negotiations minimize the value of the outcome for both parties.  John Nash introduced the Nash Equilibrium in Game Theory, combining a cooperative aspect to negotiations, that is, an effort to maximize the value of the outcome for both parties, before engaging in the more competitive stage involving compromise.  Business incorporated this Game Theory principle in coopetition strategies.  In our book, Game Theory and the Transformation of Family Law (Waldron & Koritzinsky, Unhooked Books, 2015), we show how these stages in negotiations can substantially improve the value of outcomes for the divorcing spouses and, when there are children, for the family.  Game Theory informs us that in fact the best strategies involve balancing self-interest with a sincere interest in the other party also having a positive outcome.

We have to go back to Trap #3 to understand this obstacle in family law – the assumption that divorcing spouses have a dispute.  In selfish negotiations, this assumption becomes true: the parties each take a selfish position on some legal outcome; and, because selfish positions inevitably differ, they now have a legal dispute.  However, if we view a divorce as a planning opportunity for dealing with a major life transition, not a dispute, parties can balance selfishness with altruism, grow the pie for both of them and satisfy both desires – to have the best outcome for themselves and for the other party.

Game Theory is both a branch of mathematics and a science.  It is a science because rigorous experiments have been performed to test hypotheses.  The hypothesis that a balance of selfishness and maximizing the outcome for the other party produces the best outcomes for people, rather than purely selfish strategies has been tested.  The results indicate that in selfish negotiations, parties end up with some percentage of 100%.  In balanced negotiations, the parties get some percentage of up to 146%.  By focusing on achieving what is important to both of them, they can grow the pie and each have more value in the outcome.

The short lesson is that both science and research find that an optimal outcome for one party to a disagreement is much more likely if the other party also has an optimal outcome, but this is, of course, only possible when the two parties are cooperatively focused on long-term financial and family outcomes, not short-term legal outcomes.