Fair is in the Eye of the Beholder

{3 minutes to read}  It’s rare that I don’t have a mediation in which at least one of the participants will say “I just want to do what’s fair.” I think that’s a reasonable statement and that they wholeheartedly mean it when they say it. But what does that really mean?

Is It Fair Under the Law?

Sometimes clients want to know if it is fair under the law. This assumes that the application of the law is inherently fair, which I don’t believe is consistently true. Statutes are interpreted differently based on relevant and sometimes irrelevant factors, but even if the statute is applied correctly, there is one winner and one loser. Ultimately, both parties lose, given the emotional and financial costs inherent in the process, and unintended consequences arise even for the “winner.”

Is it Appropriate Under the Circumstances?

Other times, clients want to know if it is appropriate under the circumstances. To me, that offers quite a bit of latitude since I don’t think it’s difficult to be able to fashion something as being appropriate, if that is your aim, since the measure of what is appropriate can be a very low bar.

Equal Footing

I also sense that clients do strive to have each of them treated equally, and I can understand the desire to want this. To me, though, it will only work in circumstances when both parties are in fact on equal footing. In other circumstances, it could be like comparing apples to oranges, and it will take a lot of effort to achieve that. For example, when you have a parent who has the children for 70% of the time, it’s difficult to equalize all of the factors with a parent who has the children for 30% of the time.

Is our Proposal Fair?

Invariably, after clients express their desire to be fair, they usually ask me if I think that their proposal is fair. Because from the client's’ perspective, it’s a legitimate question to ask, I try to explain fully why I don’t answer that.

What I think about their agreement is not as relevant as what they think about their agreement. As long as they are not doing something unconscionable, I think that that the measure of fairness is up to them to determine.

I explain that for all of the reasons I’ve indicated above, fair is a very subjective term, and that fair to me likely is different from fair to each of them and different from what their respective attorneys might think is fair.

I suggest instead that the parties focus on the overall agreement being one that is mutually beneficial to each of them and one that focuses on what is best for their children.

How do you define what is “fair?”

Please share your thoughts and comments in the box below.

Comments from Social Media

How about the fact that the laws vary from jurisdiction to jurisdiction? If they were fundamentally fair, why are the laws pertaining to the exact same situations not the same everywhere?

Mark Baer

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Enjoyed this article and way of thinking. There are very few mediations where at least one party has said not said they'd like the end result to be "fair". Fair definitely is in the eye of the beholder. Will be sharing that message and thank you!

Carey Allen

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Great article by my colleague Clare Piro

Debra Vey-Voda Hamilton