People are Rational and Generally Make Good Choices, But Can They Be Tricked? Part 2

“What custody schedule do you want?”

© 2016 Kenneth H. Waldron, PhD and Allan Koritzinsky, JD
Part 2 of a 4-part series

In Part 1 of this series, we noted that this is a trick question because it distracts people from their life goals and focuses them on legal outcomes, as though they are goals. It is also a trick question because it re-frames a non-zero sum game into a zero sum game.

A zero sum game is a game between two people over a finite payoff. I put $100 on a table and tell Player 1 that she gets to decide how to split the pot and if Player 2 accepts, they both get their portion of the pot; if Player 2 rejects the split, neither player gets anything. This is a zero sum game because the total payoff is limited to $100. Every dollar one gets, the other loses.

Zero sum games promote competition and conflict. A non-zero sum game does not have a limited payoff. I put $100 on a table and tell Player’s 1 & 2 that they get to spend the money on a date and I want them to discuss what they are going to do. Same amount of money but now the two players try to maximize the benefit to both of them. Non-zero sum games promote communication and cooperation.

Custody schedules in child custody disputes are zero sum games; but parenting together is a non-zero sum game. Before a separation, parents rarely thought of parenting as a zero sum game. Who took the child to the doctor was not a prize. It was a duty and sometimes an inconvenient chore. Who helped with homework was not a competition or conflict. Few if any married parents could do more than make wild estimates of what percentages of the time they were responsible for the care of the children. Then they enter the legal system, which counts overnights, a limited payoff. Parents are told to divide those up creating a zero sum game and promoting competition and conflict. They then are criticized for being competitive and having conflict.  

“But wait,” you say; “parents have to divide the time!”  

Yes, but is that a zero sum game? When we send children to school or soccer we are dividing their time and losing time with them, but we see that as adding to their lives, not as a loss. When mom takes the children skiing and dad stays home doing yard work, they do not see themselves as in a zero sum game. They do not compete or have a dispute. Negotiations over custody schedules could look like the $100 for a date game; it could be a non-zero sum game.

The task no longer is how to divide overnights; it is how to organize the parenting, given the new condition of two homes, in order to maximize benefits to the children and the parents.

Trick #2 – treating divorce as a zero sum game

DR. KENNETH H. WALDRON, PhD is a clinical psychologist and partner of Monona Mediation and Counseling in Monona, Wisconsin. Dr. Waldron has done research and published broadly on topics related to children of divorce.

He has presented to and trained groups of judges, lawyers and mental health providers nationwide and internationally, along with appearances on television and radio. He provides forensic services, including custody evaluations and expert testimony on divorce-related issues.

ALLAN R. KORITZINSKY, JD is a retired partner with Foley & Lardner LLP in Madison, Wisconsin. As a family law attorney representing individual clients for over 44 years, Mr. Koritzinsky has focused on divorce law, alternative dispute resolution and works with colleagues in estate and business planning and real estate transactions. Mr. Koritzinsky was listed in The Best Lawyers in America® for over 25 years.

Mr. Koritzinsky was the 2011 recipient of the State Bar of Wisconsin Senior Lawyers Division Leonard L. Loeb Award. Mr. Koritzinsky has authored or co-authored numerous articles and books and lectured in lawyer and judicial continuing education seminars throughout his career.

Dr. Waldron and Mr. Koritzinsky are co-authors of Game Theory and the Transformation of Family Law; CoParenting Training Workbook; and Divorce Workbook.