What’s "Fairness" Got to Do with It?

NYC Mediator Susan Ingram explains how the mediation setting lends itself to a more "fair" divorce agreement than possible in the traditional litigation setting.

In the divorce arena, a fascinating balance exists between the dictates of the law and a couple’s ability to determine what is “fair” for them, given their specific circumstances. If a couple chooses mediation over a litigated divorce, they have the opportunity to craft an agreement that more accurately reflects their needs.

How is this so? Even though the mediation process still remains under the “umbrella” of the law, in mediation a couple has much more flexibility in framing an agreement that meets both parties’ needs and is “fair” for both of them.

Under New York State divorce law, the non-custodial parent is required to pay child support to the custodial parent. This makes sense as long as one parent (defined as the custodial parent) has the children more than 50% of the time. Unfortunately, the law has not been updated to reflect the equal parenting approach that has become more popular in recent years. So when the law is applied to a truly 50/50 child-sharing arrangement, the results can end up being quite “unfair.”

This happened with Amy and Bill, divorcing parents I worked with recently in mediation. They’re both very involved parents and are committed to sharing time equally with their two children. In fact, they’ve chosen to live in separate apartments in the same building complex in New York City so that they can put this into effect as seamlessly as possible. They both work full-time and earn nearly the same amount of salary; Amy earns $82,000 a year and Bill earns $84,000 a year.

If they were litigating their divorce in court, Bill would have been required to pay child support of $19,000 per year, just because he earned $2,000 a year more than Amy – and also, because there’s no accommodation in the child support law for an equal custody arrangement.

However, this situation played out very differently in mediation. Both were determined to make decisions in the best interests of their children and wanted to make sure that they could each provide a similar lifestyle. That would certainly not have been the result if they had followed the standard child support guidelines. In that case, after paying Amy $19,000 in child support, Bill would have been left with $65,000 and Amy would have had $101,000. Not exactly “fair!”

So Amy and Bill agreed that as long as their salaries stayed substantially even, neither would pay child support to the other. If their salaries later differed by more than a certain amount, they would calculate each of their pro-rata share and then have the higher earning spouse pay the other spouse child support based upon the percentage difference in their earnings.

Amy and Bill discussed a number of other options and could just as well have agreed upon one of their other choices. The important thing to remember is that it was the mediation setting which enabled them to reach a much “fairer” agreement that supported their needs and those of their children.


Comments From Social Media

I certainly have many mediations where couples after understanding what their rights might be under the law, elect to handle things differently to accomplish their own sense of fairness. I absolutely agree that mediation gives couples a much wider range of options in resolving their divorce.

Barney Connaughton


That is one of the strongest arguments in favor of mediation! Especially in a divorce situation, a fair agreement does not always depend on what the law states, but on what works best for both parties. The parties can walk away with the confidence that the other party will stick to the agreement as well because it is a win-win situation.

Lisa Scholz


Hi Susan! How right you are! Mediation, especially within the confines of Family Law, makes for complete commonsense. The parties know their situation and are best placed to act in the best interests of their own children – in both the present, and the future. A competent and committed mediator is the best investment they can make to their future, and that of their children. 

Therese Ryan

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