Is it fair?

Every client I met with today was dealing with a different set of concerns, questions and needs. Every client I met with today had one question in common: some variation on “what is fair” in their divorce.

I recently had the privilege to attend a class put on by the association of Collaborative Law Attorneys. The legal education seminar included several sessions by attorney and speaker Catherine Conner from the Center for Understanding in Conflict in California. She touched on this idea of fairness several times and pointed out that every client has their own “Reference Points” that guide how they rate a potential resolution in their case.

Some of the reference points we talked about include:

  • A personal sense of fairness;
  • The interest and needs of the parties and others (often including close friends and family);
  • The need or desire to preserve relationships (including with the other party and others);
  • A community sense of fairness and justice often focused on the law and the underlying principles behind it;
  • The practical and economic reality of each party, including income, fixed expenses and earning potential;
  • Prior agreements of the parties and their families. Some agreements (like prenuptial agreements) are formal but others are informal or even implicitly drawn from the conduct of the parties; and
  • Cultural, religious or family values.

The majority of my clients apply most if not all of these reference points. Many clients will weigh their reference points with two or three  being the most important to them.

Because every person approaches a divorce using a combination of their own reference points, every person prioritizes different issues over others. This is true for the parties, but it is also true of attorneys and Judges.

When a client asks a lawyer “is this fair?”, the attorney often thinks they are asking will a judge agree with their assessment of the facts or law. They may be, but they may also be asking about the fit between the outcome they believe is best based on their reference points and what a judge will rule. A good attorney can help explain what the law says about a case but will help a client explore possible outcomes using the client’s reference points.

When clients feel unheard, one possible culprit is an attorney using their own reference points when giving advice on a case. A client should never be afraid of pointing out what they believe is important when working with a lawyer to set strategy for a case, and lawyers should encourage clients to do so.

The information in this post is shared with permission from Catherine Conner.

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