The Family Law "Market Value" Approach to Resolution

"So, you say you would like dinner with your daughter this week.. "

Well.

Two weeks ago I was in San Francisco, attending the annual IACP forum on Collaborative Practice.

And, my general response to the forum is that if I can learn one new thing that I carry with me back home, it was a worthwhile trip.

And, true to form, I picked up a few things - most notably, an excellent lunch time talk by author and University professor Dan Ariely on the predictability of irrational behavior.

Very interesting stuff..  particularly from the point of view of the marketing of ideas - what Ariely refers to as "behavioral economics".

Noting that general economic theory is premised on the idea that people will always make the most rational decision when faced with two choices - Arielly shows, clearly, that people will often make irrational decisions in a predictable fashion, throwing some economic theory into chaos.

What does this have to do with Family Law and the Collaborative Process?

Good question.

Well, his speech was interesting enough that I bought his book, "Predictably Irrational", and a very interesting portion of the book talks about the competing influence of social values and market values.

In studies, Ariely has found that given a specified task, predictably, people will work much harder when paid fair value for their effort than they will when they are underpaid for their effort.

The surprising part of the study, however, is that it was found that people will work just as hard and perhaps harder for free, when the basis of the request is a "favor" or a request for assistance based upon what Arielly refers to as "social norms" as opposed to "market norms".

So then.

How does this impact on divorce in Lethbridge, Alberta?  Or Calgary or Medicine Hat, or anywhere for that matter?

Well, consider that in an effort to make the results of divorce more fair and predictable, we have began to legislatively quantify our obligations to assist our spouse and our children.  Child Support Guidelines, Spousal Support Guidelines - and even beyond legislative guidelines, when we take our disputes to Court, we take what was formally a social and emotional commitment to assist our families, and turn them into court directed commitments.

Ariely might refer to this as bringing "market value" to divorce.

And, as Arielly has shown us, our willingness to "go that extra mile", to modify our own interests in favor of another based upon our social norms, can in fact be damaged when we change what was a social norm to a "market value" norm.  To a norm based upon money.  Cash.

So then - consider the difference in the degree of cooperation and assistance between former spouses with children where their respective obligations towards each other have been reduced to court imposed monetary obligations.

According to Ariely, we might reasonably expect that there will be much less willingness to do anything beyond the "market value" established for the respective obligations between the spouses.

And how many of us have seen that, every day, in our practice.

Parents discovering that the nice order for child support becomes the maximum that the other parent is willing to do for their children.  Forget about helping drive the children to their events - "I pay you for that".

Parents discovering that the time they have with their children, when prescribed by agreement, becomes the be-all and end-all.  "Your family reunion?  Sorry, it's MY weekend."

Collaborative Process offers the best opportunity to maintain a social norm between separating spouses.

Where they discuss how they are going to arrange their finances, and yes, come to agreements, but come to agreements that are not prescribed by some arbitrary third party, either the legislature or the Courts.

Think about how YOU would feel, in your marriage, if the obligations between you and your partner were established by Court Order - and how that might impact your willingness to do MORE than Ordered.

Arielly suggests that in society as a whole, we have perhaps moved too far to establish relationships between citizens based upon "market norms".

One might suggest the last place that "market norms" will be appropriate is in the family.

Collaborative Process offers an option to maintain higher value on "social norms" - the sort of obligations between spouses that don't exist when you are together - and can, to a great degree, be maintained after you part.