• Trish Guise

Part 4: Why Can't We Just Compromise?

Updated: Sep 9



Remember when you were a kid and you had to share with a sibling or a friend?

Kneeling down so you can be at eye level with your cups to make you both have the exact same amount of soda in each cup.


Splitting everything down the middle so ‘everyone would be happy’?

Was anyone really happy?


Compromise is the easy way, not the fair way or the best way. We do it because we want to avoid confrontation, avoid hearing NO and to avoid a fight. Our brains and bodies are trained to go towards safety and move away from pain, so we tend to gravitate towards compromise not true negotiation. In my mind, a better word for compromise is ‘settling.’


Compromise tends to be the name of the game in divorce. For the most part, the default position is that everything is split 50/50, assets, debts, even parenting time. Splitting everything down the middle because that’s what is ‘fair’. But what strikes me as odd is that no one is really looking at the concept of fairness and its inappropriate application in the divorce arena. Compromising out of fairness results in each party only getting half of what they want and splicing a solution together that nobody wants. So instead of only one person getting a lousy deal, both parties leave unhappy.


Chris Voss of the Black Swan Group said "trying to create an effective solution via compromise is like assembling build-it-yourself furniture with the wrong instructions—you can follow the directions perfectly and still end up with something that doesn’t look or function like the table you thought you bought."

Fairness is subjective


Our perception of what is fair, is based on our upbringing, our life experiences, and our emotions. Think back to your childhood to all those times your parents told you to work things out with your siblings. The times when you both wanted to play with the same toy but only one could play at a time and when you asked your parents to intervene, they told you to compromise and be fair. There never was a shortage of solutions, just a shortage of solutions that seemed fair to both siblings. Interestingly only the one who suggested the solution would deem it as being fair.

Now can you see a divorcing couple coming to the table with the same perception of what would be fair for both parties? I know I can’t.

Will a 50/50 split make sense in your situation?


Generally speaking, it makes sense that the default in a divorce is to split debts, assets and parenting 50/50. What I’m noticing with many of my clients is that, while on the surface 50/50 makes sense, the specifics of their situations mean that 50/50 wouldn’t make sense at all.


Let's look at an example:

Dad operates his own business and travels out of town from Monday to Friday most weeks. Mom helps with the business and looks after the children and the home while Dad is out of town. When Dad is home on the weekends he spends as much time with the family as he can while also trying to get some things done around the house.


Options are:

1. Compromise with a 50/50 shared parenting arrangement or

2. Customize with two different options that are designed to address the family's specific needs.


COMPROMISE: 50/50 shared parenting

If the parents split the parenting time 50/50, the actual time spent with the children won’t really be 50/50. Dad often travels during the week and when scheduled to have the children he would either have to cancel work or hire a nanny to look after the children. In this case, it would seem the Dad would end up with less actual time with the children than he had before when he saw them every weekend.


CUSTOMIZED OPTION #1:

Keep schedule the same as it was prior to separation.

This will:

  • reduce disruption to the children’s lives and maintain consistency.

  • allow Dad to continue to operate his business and travel as required.

  • allow Mom to continue her role of being the primary caregiver of the children.


Note: this may mean that Dad may have to pay more child support than if he had 50/50 however, one has to determine what the priority is.


CUSTOMIZED OPTION #2:

Dad reschedules some of his travel so he only works out of town 3 weeks out of the month.

This will:

  • provide a consistent schedule for the children.

  • give the children more time with Dad than they had before the separation. .

  • give Dad the opportunity to be more involved in the children’s school activities, homework, extracurricular activities and normal day to day child care.

  • allow Mom some of the fun time with the kids on the weekend, instead of always having to focus on the kids, homework etc during the week.

Will a 50/50 split satisfy both you and your ex-spouse?

Chris Voss talks about the concept of “Prospect Theory,” wherein if a person were to experience a loss and a gain of equal value, they would perceive the pain of the loss as much greater than the pleasure of the win. When you choose to compromise as a way of negotiating you become primed to be disappointed with the end result regardless of the net gain you’ve achieved. Unsurprisingly this can lead to feelings of resentment and discontent. In a divorce situation, feelings of discontent are usually already high and compromising will do nothing more than aggravate the situation. Both parties will invariably leave the negotiation table feeling as if they’ve been ripped off and that the other party made off with more. So instead of de-escalating the conflict in a divorce scenario, compromise tends to inflame it.


Let’s look at an example:

DAD is the primary caregiver and MOM runs a successful business.


DAD has grown tired of the annual child support re-evaluation payable to him because the preparation consumed months of his time and thousands of dollars in legal fees.

DAD still wants the child support payments to continue to allow him to stay home and be the children’s primary caregiver


MOM has grown tired of having to provide full financial disclosure to DAD every year.

MOM feels it infringes on her right to privacy and is tired of providing support payments so DAD doesn't have to work.

MOM wants Dad to go back to work or at the very least have income imputed to him so her support payments could be reduced.


COMPROMISE:

DAD suggests they stop the support payment re-evaluation process and keep the support payments at their current level until the children are no longer children of the marriage.


DAD is trying to compromise by giving up any entitlement to future gains in MOMs earnings in exchange for not having to spend months and thousands of dollars each year arguing over the support amount.

DAD feels that it is a small price to pay to obtain peace in his life.


MOM is adamant that DAD should return to work or at least have income imputed. MOM feels she is shouldering too much of the financial burden but likes the idea of not having to provide any more financial disclosure and not having to pass along any future earnings gains.


So they compromised and agreed to the deal…

until 3 years later when MOM decided she was still tired of paying DAD to stay at home and not work. She lost sight of the gains she obtained (keeping her financials private and not having to share her increase in earnings each year) and continued to focus on the fact that she is still paying for her ex spouse to have a great lifestyle without working.

So MOM filed for sole custody and now the gains that DAD thought he won (peace and no more legal battles over money) were washed away.


So what is the lesson in all of this?

The lesson is don’t aim for a compromise in the hopes that you will end up with a fair and satisfactory result for both parties because the result will be anything but. The goal is to create an agreement that is mutually beneficial but not in the same way. This mutually acceptable agreement should be comprised of providing both parties with what they value most, not by taking everything, whether you value it or not, and splitting it down the middle.

Disclaimer: This article, in no way, is associated with Black Swan Group nor Chris Voss nor is it endorsed by nor commissioned by the Black Swan Group nor Chris Voss. The article is based solely on my experience and knowledge of the principles the Black Swan Group and Chris Voss espouse and how I choose to apply them to my practice.


The content is this publication is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional