The zero-sum Approach

“Lawyers therefore tended to think of children's preferences as being about outcomes, with the available choices being defined by the parents’ respective positions.” – Judy Cashmore and Patrick Parkinson, The Voice of a Child in Family Law Disputes

My thesis for my LLM in New Zealand is focusing on the role of the lawyer for child in custody cases. One of the big issues lawyers face when representing children is whether they will advocate for their client’s best interests or be more of a “traditional” lawyer, advocating for their wishes. Without getting into the debate (and yes, it is a big, big debate) about which should be the lawyer’s role, I want to discuss the yoga problem I see with one aspect of the debate – the zero-sum mentality.

When lawyers discuss custody cases, especially with respect to children’s wishes, they discuss the child being asked his or her wishes between two parents. The traditional mentality is that a lawyer sits down with a child and says, “With which parent would you like to live?” The United States is one of only two countries in the world that has not ratified the UN Convention on the Rights of the Child, and one of the reasons is that it gives children a right to be heard in judicial proceedings that affect them. Many people argue that it is unfair to ask a child to choose between their parents.

Those people are correct, absolutely correct. The problem with this view, however, is that it conflates the issue of child’s voice into child’s choice. The argument makes two assumptions: 1) the child will get to decide, and 2) there is only one choice to make. These assumptions leave us with basically two choices - either Mother's argument or Father's argument will "win," and the child will decide the outcome. (To be clear, this is not what actually happens in cases, only the fear of what might happen.)

This brings me back to the quote at the top. In a book co-written by a psychologist and a lawyer, the authors found that lawyers assumed children’s views were about one outcome or another, based upon what the parents were arguing as their positions in court. Interestingly, the psychologists and mediators interviewed, saw the child’s views as having many possible outcomes and often shedding light on new avenues about which the parents and professionals had never thought. In other words, the children did not live in the same zero-sum world as their parents and the lawyers.

Why does this happen to lawyers?

Lawyers are often stuck in a zero-sum world. There are winners and losers, and we must decide which is right and which is wrong. Yoga, by contrast, shows us a different world, one in which two or more possibilities can exist together (did anyone else notice the irony of putting that sentence there?).

When we allow ourselves to break free of the fight-or-flight mentality, we can begin to see the bigger picture. Options become clearer when we open our perspective. Yoga helps us get there by helping us slow down. A zero-sum mentality is heightened by the constant stress and the legal tradition of guilty vs. not guilty, winner vs. loser. Those paradigms, however, work less and less well in complex situations, especially when peoples’ lives are involved. Many family law judges have said they know they do a good job when both parties leave upset - it means that no one won, but a compromise was reached.

Breaking free of the zero-sum mentality means taking a moment to reflect instead of react and opening up to creative possibilities. Luckily, yoga is great for improving our creativity by calming the mind enough to allow us to think clearly once again.

In what ways do you find yourself getting stuck in a zero-sum mentality? What is your favorite way to get past it?

Namaste!