NonZero Sum Games

The ‘I Win, You Lose’ Tussle of Divorce Court

Did you know that from Richard Dawkins: “In what are called ‘civil disputes’ there is often in fact great scope for cooperation. What looks like a zero sum confrontation can, with a little goodwill, be transformed into a mutually beneficial nonzero sum game.

Consider divorce. A good marriage is obviously a nonzero sum game, brimming with mutual cooperation. But even when it breaks down there are all sorts of reasons why a couple could benefit by continuing to cooperate, and treating their divorce, too, as nonzero sum.

As if child welfare we’re not a sufficient reason, the fees of two lawyers will make a nasty dent in the family finances. So obviously a sensible and civilized couple begin by going together to see one lawyer, don’t they?”

Well, actually no. At least in England and, until recently, in all 50 states of the USA, the law, or more strictly – and significantly – the lawyers’ own professional code, doesn’t allow them to. Lawyers must accept only one member of a couple as a client. The other person is turned from the door, and either has no legal advice at all or is forced to go to another lawyer. And that is when the ‘games’ begin…

In separate chambers but with one voice, the two lawyers immediately start referring to ‘us’ and ‘them.’

‘Us’, you understand, doesn’t mean you and your wife; it means you and your lawyer against her and her lawyer.

When the case comes to court, it is actually listed as ‘Smith’ versus ‘Smith’! it is assumed to be adversarial, whether the couple feel adversarial or not, whether or not they have specifically agreed that they want to be sensibly amicable. And who benefits from treating it as an ‘I win, you lose’ tussle? The chances are, only the lawyers.” “The hapless couple have been dragged into a zero sum game.

For the lawyers, however, the case of Smith v. Smith is a nice fat nonzero sum game, with the Smiths providing the payoffs and the two professionals milking their clients’ joint account in elaborately coded cooperation. One way in which they cooperate is to make proposals that they both know the other side will not accept. This prompts a counter proposal that, again, both know is unacceptable. And so it goes on.