Source: http://www.aaml.org/Articles/2003-4/Game%20Theory%20Summary.htm

 

 

Game/Decision Theory

Applied to Family Law

 

 

 

Introduction

 

 

 

 

by

Kenneth H. Waldron, Ph.D.

Waldron Kriss and Associates

6702 Stonefield Road, Suite A

Middleton, Wisconsin  53562

kwaldron@smallbytes.net

 

 

 

 

 

Last Updated: December 16, 2002

Revised as to Form: February 3, 2003

 

 

 

Copyright © 2003

Kenneth H. Waldron, Ph.D.

 

 

Printed in the United States

 

 

This is one of a series of Social Science Research Review Summaries on topics related to divorce.  The materials contained in this Review Summary are protected intellectual property.  Reproduction of the information in this Review Summary, in any form and by any manner, and/or electronic transmission, without written permission from Kenneth H. Waldron, Ph.D. is forbidden, EXCEPT:

 

Part or all of this Review Summary may be reproduced in original or modified form, and distributed to parents going through a divorce, on condition that no fee for this material, including reproduction costs, is assessed to the parent.

 

 

 

Executive Summary.

 

1.      Game theory is sometimes called decision theory.  It was developed as a school of mathematics originally to study human behavior in parlor games.  Mathematicians derived a system of calculations from several other schools of mathematics that could predict the decisions that players in a game were likely to make.  Statistics is the mathematical study of chance occurrences; game theory is the mathematical study of decisions that determine outcomes. 

 

2.      Game theory has evolved to a study of human decision making in a variety of arenas of human functioning.  Mathematicians are actively involved in military planning, for example, and in macro-economics.  Some application of game theory to law has been made and there have even been some references to principles of game theory in the study of marital relationships. 

 

3.      The mathematics of game theory are complex, but the principles are relatively simple.  Nevertheless, there are many principles and we cannot hope to describe them all in this brief summary.  Rather, we will be focusing on two principles that might be helpful in conducting family law cases.

 

A)    Normal Form Game vs Extensive Repeated Form Game.  A normal form game is a one-time game in which the players follow rules, make decisions, and have a payoff.  The payoff is the end of the game.  An extensive repeated form game is a game made up of a series of normal form games with payoffs servicing as “nodes” in an ongoing game.  Playing one hand of poker is a normal form game; playing poker every tuesday with the same friends is an extensive repeated form game.

 

B)    Simple Games vs Mixed Games. A simple game is one in which the players engage in the game with a single known payoff at the end.  A mixed game is typically a  simple game in that there are players and rules, but there are at least two and often more payoffs for the same game. 

 

4.      We can think of Family Law as a game.  There are players, rules, decisions and strategies available to the parties, and there are payoffs.  There are, in fact, six separate games being played, that is, the different combinations of the players including two attorneys and two parties.  there are more games being played if a guardian is added and even more still if the case is tried. 

 

5.      Family law as it is traditionally played is played as though it is a normal form game, that is played to the conclusion of a settlement or orders after a trial.  This is in direct conflict with the parenting game the parties are playing, which is an extensive repeated form game, that is, they must make many decisions with each other for many years.  This creates a problem because the decisions and strategies most successful in a normal form game are in direct conflict with the decisions and strategies most successful in an Extensive repeated form game.  This causes parental conflict.

 

 

6.      Family Law as it addressed issues of child custody and placement is also a mixed game, with many payoffs associated with the single decision on a placement schedule.  This is a problem because it often makes what might be a fairly straightforward decision about what is good for children complex and confounded by the other payoffs involved (e.g. child support).   

 

7.      the idea that a Family Law game could be devised with different rules and in a different form that would promote better communication and cooperation between divorcing parents is presented in this paper. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Contents.

                                                                                                                                    Page

 

A.     Introduction.                                                    4

B.     Normal Form Games vs. Extensive Repeated Form Games.            6

C.     Simple Games vs. Mixed Games.                                    8

D.    Summary.                                                        12 

E.     Conclusions.                                             13

 

Introduction.

 

Brief History of Game Theory.  Game Theory is a branch of mathematics that really emerged in the 1940’s and 1950’s, starting really with John von Neumann.  Although initially, most of the math problems focused on parlor games, the branch grew to consider other important forms of strategic interactions between people.  John Nash, for example, developed a solution concept that predicted behavior in macroeconomics so well, he won a Nobel Prize for this contribution.  Game Theory is also known as Decision Theory, because whereas Probability Theory focuses on chance, Game Theory focuses on the decisions people make as a part of strategies to achieve outcomes.  For simplicity, we will only refer to Game Theory, although one could substitute Decision Theory at any point. 

 

Game Theory involves the applications of several types of mathematics, including probability math, algebra, set theory, calculus, and even to some extent, geometry.  The application of Game Theory has been extended to law, military action, economics, social design, political theory, and to a very small extent, marriage theory. 

 

Whereas the mathematics in Game Theory are complex, the basic principles are not.  In this brief summary, we shall deal solely with principles. 

 

 

Definitions.

 

(A) What is a game?[1]

 

1)     There must be two or more players who are strategically involved with one another.  By strategic involvement, we mean that the relationship between the players must include the other conditions of a game below.

2)     Rules.  There must be rules by which the players must abide. 

3)     Payoffs.  In formal Game Theory, these are actually called utilities, but payoff is an easier concept to understand.  The outcome of the game, or a portion of the game (called a node) must have a payoff.  We do not use the word reward here because a payoff might not be a reward, but might simply be less of an aversive consequence.  For example, a criminal might plead guilty to a lesser crime not to gain a reward, but rather to lessen the penalty. 

4)     Each of the players must have strategies available that involve decisions.  It is not a game if the players are bound by chance and/or have no choices.  It is the fact that the players have choices, points at which they can chose difference actions, that makes it a game.

   

(B) The solution concept of the game.  This is the central theme of game Theory, that is, that the game has a solution, at least at its various nodes.  Even infinite repeated games have a solution concept. 

 

Illustration: Normal Form Game: Player A and Player B play one hand of draw poker.  Within the single hand, each player will make several decisions (e.g. Whether to bet, raise, or call; how much to bet; whether to take another card; whether the odds are such that folding is better than continuing, etc.).  The solution to the game is not the winner or payoff; the solution to the game is the whole picture of the strategies used by both players.  One solution might be, for example, that Player A played a perfect hand, making all of the right decisions at the right points, playing the odds to his/her maximum benefit, but lost the hand.  Player B might have made some major errors but have won. 

 

Now let us look at a finite but extensive repeated game.  Player A and Player B play poker for an evening, playing over 100 hands, starting with a buy-in amount and ending either when one player is out of money or when they have played for five hours, whichever comes first.  Betting is table stakes, but limited to three raises.  We now add several important strategies.  Because a player has a better chance at the payoff if the other player runs out of money first and the game is shorter than five hours, betting strategies become critical.  In a single hand of poker, bluffing has almost no payoff value but in an extensive form in which there are many hands, bluffing has an enormous cumulative value (one statistically increases the chances of winning an average of hands by bluffing under certain circumstances).  In other words, in a single hand, only decisions that improve the chance of winning that hand will be a part of a good solution.  In an extensive repeated game, a decision that decreases the chance of winning an individual hand might increase the chance of gaining the payoff for the whole game.  The solution to this game will be the sum total of both players’ strategies within and across hands that led to the completion of the game, after one player lost all of his/her funds or five hours elapsed. 

 

Now let us look at an infinite repeated game.  Player’s A and B are friends who enjoy poker and each other’s company.  They play poker every Tuesday and anticipate doing so for the rest of their lives.  Winning money is still a payoff, but our friends have added other payoffs of importance to them.  They wish to enjoy their time together and avoid engaging in behaviors that will discourage their regular game.  So they have rules about betting limits with smaller stakes.  With smaller stakes and the payoff of fun being added, bluffing might not be for the purposes of gaining a long-term advantage in the balance over the years of who won the most money, but rather for the sole purpose of having fun, even though it might be a poor strategy for making money.  Again, the solution in this game is the sum total of both players’ strategies over time, with an infinite number of nodes in the game.[2]  

 

For interest sake, it was the solution concept that John Nash invented that won him the Nobel Prize.  His solution concept was elegant mathematically and showed that one could predict human behavior, if one assumed that players were rational, knew the rules, and knew the payoffs – that there was a point of equilibrium in which none of the players could do better without the others doing worse.  His is one of only several solution concepts used regularly in modern Game Theory.

 

(C) Normal Form Games vs. Extensive Repeated Form Games.[3]  We have referred above to Normal Form Games and two types of Extensive Repeated Games (finite and infinite) in our illustration.  This is a key concept in understanding how Game Theory applies to the practice of Family Law.  Many of the financial settlement issues in Family Law are settled in a Normal Form Game, that is, a one time set of negotiations and/or judicial decisions, that end the game.  Once a house is awarded, retirement accounts divided, furniture distributed, etc., the game is over.  Unfortunately for children, Family Law also looks at the resolution of Physical Placement[4] as a Normal Form Game.  After a period that might include negotiation, agreement, psychological evaluations, custody studies, litigation, and other steps, the game is concluded with a schedule that is ordered by a court.  From the court’s perspective, the game is then over.  In practice, parents often want to come back and play the game again to get a different payoff.  The court discourages this in many ways: some statutory, some through local rules, and some through simply labeling such parents in denigrating ways and putting them through special programs aimed at reducing the chances of them returning to play the game again.  If they jump all of the hurdles and are allowed to play the game again, it is again a Normal Form Game that is played, again with strategies chosen and a final payoff, that is, the Placement Schedule that is newly ordered.

 

I say that this is unfortunate for children because this is not the game that has much to do with their long-term interests.  In the court system, the parents are playing a Normal Form Game, but in the life of the child, the parents are playing an Infinite Repeated Game.[5]  The parents are strategically connected to one another in this game for the rest of their lives.  In fact, the Normal Form Game of the courts INTERFERES with the Extensive Form Game played by the parents.  A placement schedule creates artificial obstacles, for example, to the child having the best life available.  Families who raise their children well recognize this and ignore the Normal Form Game.  These parents, for example, make a decision about whether or not a child is enrolled in dance independent of the placement schedule.  They will in fact change the schedule if they must, without judicial review, to accommodate that decision.  These parents will give up placement time to afford the child an opportunity to be with the other parent (e.g. for a family reunion).  These parents consider themselves and act like parents 100% of the time, while in the Normal Form Game he or she might be awarded only 44% of the custody. 

 

In other words, the practice of Family law is playing the Court Game, which is in essence awarding the control and use of the property (the child) to the parties on a time share basis in a one time game (Normal Form Game).  The parents learn this game, often abandoning their parenting instincts, to play it well, and yet find themselves in the forever complicated Parent Game, which is in essence a serious of tens of thousands of decisions (Infinite Extensive Repeated Game), many of which require the involvement of both parents to work well.  In other words, the attorney is playing one game, the court game, while the parents are playing two simultaneous and in many ways conflictual games, the court game and the parenting game. 

 

In the practice of Family Law, therefore, when it comes to the placement of children, the legal system is playing the wrong game.  The problem is not that the legal system is litigious; in fact, litigation is often the best way to resolve some of the difficult decision making that must be made by parents.  The problem is that the lawyers and judges are playing the wrong game. 

 

Court systems, and the many good professionals associated with it, have instinctually known this all along.  Many efforts have been made to create some rules that help the parents in their Extensive Game (e.g. parent classes, reading materials, and so on), but this is still offered in the context of the Normal Form Game of the award of custody.  Mediators know what I mean.  Even though in mediation we might convince parents to think in the long-term, to recognize the fact that the parental relationship has more impact on child development than a placement schedule, when we get to settling on a placement plan, parents often resort to the Normal Form Game approach.  

 

The reason this becomes important is because the game that people play predicts human behavior.  More about this after we cover a few more basic concepts. 

 

(D) Simple Games vs. Mixed Games – how to separate mixed games into Simple Games.  A simple game is one in which the players have rules, engage in strategies that involve decision nodes, and have a payoff.  A mixed game is a game in which the payoff is mixed, that is, the players have more than one payoff in the same game.   

 

Illustration: Simple Game: Player A wants to go to movie X and Player B wants to go to movie Y and they are neutral about being together.  There are many solutions to this game, but most of them are not rational.  The most likely solution is that Player A will go to movie X and Player B will go to movie Y.

 

Mixed Game: Player A wants to go to a movie with Player B, who also wants to go to a movie with Player A.  Both are, first, interested in being together and secondarily in seeing a movie they will enjoy.  Player A wants to see movie X and Player B wants to see movie Y.  In this mixed game, there are four reasonable solutions to this game[6]: 

1)     Player A goes to movie X; and Player B goes to movie Y;

2)     Both players go to movie X;

3)     Both players go to movie Y;[7]

4)     They choose a movie (Z) that is less desirable to either player as a first choice, but is most likely to be enjoyed by both players.

The payoff is complicated in each instance.  For example, the solution depends on the utility (relative value) that each Player assigns to his or her choice of movie compared to the utility of being together.  If one does the math on this game, the players will likely go to a movie together and which movie will depend on the utility of the movie choices to the two players.  If Player A rates seeing movie X as having a value of 95 (on a scale of 100) and Player B rates seeing movie Y as having a value of 30, and all other movie choices have a relative value of under 30, the choice will likely be 2).  If Player A rates movie X at 65 and Player B rates movie Y at 65, and a third movie choice is rated at 61 by both players, the solution will likely be 4). 

 

As can be seen from this illustration, simple games are substantially easier to resolve (i.e. have solutions) than are mixed games.  An essential strategy in working with divorcing parents relative to the question of placement of children is to separate the mixed games into simple games.  As we will see later, the mixed game of placement is especially complex.  Look at what happens to the number of rational solutions in our illustration, which is a Normal Form Game, when we simply mix the payoff by adding one factor (the utility of being together).  When we look at the at least 9 payoffs listed in Par. III (D) and the problem of assigning utility to each payoff, the problem becomes extremely complicated and often underlies the intense conflict between otherwise good parents.

 

 

(E)  Before getting to the Game Theory as it applies to placement schedule awards, let us look at one other complicating factor.  In family law practice, there are six simultaneous games.

 

§  Husband/Wife

§  Attorney/Client (Husband)

§  Attorney/Client (Wife)

§  Attorney/Attorney

§  Husband/Wife’s Attorney

§  Wife/Husband’s Attorney

 

Each of these games has individual and unique rules and structures of payoffs.  For many reasons, most notably simplicity, we are limiting our discussion to the game being played between the husband and wife.  However, keep in the back of your mind that the other games might at any given point be the dominating games affecting the behavior of all of the parties.  A bitter rivalry game, for example, between two attorneys might predict one set of strategies chosen by the attorneys and used to guide the husband and/or wife whereas a friendship/mutual admiration game between the attorneys might predict another set of strategies. 

 

 

Game Theory Applied to Conventional Family Law – Specific to Issues of Physical Placement.  There are inherent qualities to the conventional approach to physical placement in the court game, that is, the Normal Form Game played in “the shadow of the law.” 

 

(A) Establishes a zero sum game (i.e. overnights).  In zero sum games, the dominant strategies are competitive/non-cooperative.  In any form, placement as negotiated and tried, is in essence a division of the time of the child.  Most common is a division that awards days and overnights, but even complex awards (e.g. Monday after school with dad to 5pm; with mom overnight and continuous to Wednesday after school; and so on) are divisions of the child’s time.  Because time is limited (i.e. so many days, nights, hours, etc.) it is a zero sum game.  A zero sum game is a game in which an increase in the payoff for one player is exactly commensurate with a decrease (usually but not always equal) for the other player.  If Player A and Player B have the task of dividing 100 pennies, any penny one gets is a penny lost to the other.  These zero sum games have been extensively studied and the strategies used by players are highly likely to be competitive.  How competitive depends on other rules.  There is one Divide the Dollar game, for example, that shows that players will much more often play in a manner that leaves them both with nothing, rather than an unequal division but at least with something.  Don’t we see this in many placement contests, where parents appear to be playing the game with no thought to how much it will cost, both in terms of emotion and money and sometimes without a thought for the psychological damage to the children.  Zero sum games promote these destructive competitive strategies. 

 

(B) Assumes a non-cooperative bargaining procedure (e.g. There is a need for two attorneys because the parties interests are assumed to be at odds).  The assumption that the interests of the parties are at odds with one another is a correlate of Par. (A) above.  Interestingly, this rarely matches the reality for parents who are playing the parent game rather than the court game.  If you ask parents playing the parent game what the goals are for their child, he/she will rarely reply that their goals are different (e.g. to love and be loved by both parents, to do well in school, to have a fun childhood, for the parental divorce, etc.).  The parent game is an entirely different game than the court game.  In the best of circumstances, the parent game is a game in which the parents establish rules,[8] with the payoffs being largely subjective and based on joint goals, not opposing ones.  The court game pressures parents into a game in which their interests are in opposition to one another. 

 

(C) By dividing the child’s time (fixed amount available), it becomes analogous to the “divide the dollar” game, per Par. (A).  If one or both of the parties want more than 50/50, there is no advantage to cooperating.  The diminishing value (i.e. custody time) is shouldered by one party.  For example, if dad wants 50/50 and mom wants primary, mom has nothing to lose by going to court (i.e. her worst outcome in court would be the same as settling for 50/50; she is unlikely to get less than the most that Dad is requesting.).  Dad has nothing to gain by bargaining – he can only have diminished value by bargaining to a less than 50/50 arrangement.  Add in child support calculations and you can actually predict a payoff schedule for the parties in terms of the costs of litigation against the costs/savings in child support.  Since both parties can do no better than through litigation, or a litigious style of negotiations, both parties are likely to engage in that strategy.

 

(D) Physical Custody/Placement is a mixed game, that is, with different weighted (subjective) payoffs for each sub-game.  Although the payoff is defined as “overnights” with the child, there are actually several different subjectively weighted payoffs in the game:

 

 

The Drama of the Mixed Game!

 

(1)  Placement time with the child;

(2)  Conversely, the threat of loss of placement time with the child;

(3)  Child support amounts;

(4)  Spousal support advantage;

(5)  Property advantage (e.g. keeping the homestead);

(6)  Status and self-esteem: being identified as the “primary” parent; being seen as a good parent; the parent loses part of his or her sense of meaning in life if that meaning was organized around parenting; the desire to be seen as an equally good/important parent; and so on;

(7)  Equity and social context rewards (e.g. gender equity);

(8)  Power (e.g. decisions about extracurricular activities; relocation advantages);

(9)  Competitive egos – “I am a better parent than you;” “I am as good a parent as you;” etc.

 

With a payoff structure this complicated, with so many of the payoffs unknown, even to the players, the likelihood of high conflict behaviors is very high. 

 

Illustration: Player A (mother) wants at least 66% of the placement time.  There is a reasonable likelihood that with this amount of placement time, he/she can maintain the bulk of the role in the family that has come to have a great deal of meaning, including primary rights to make most of the school, social, and activity decisions for the child.  In addition, Player A will likely be awarded the homestead in this scenario, and will have sufficient income through child support to remain there comfortably, possibly without having to move to a full time work position.  This leaves more time to provide quality parenting to the child.  Unconsciously, however, there are other driving forces for her.  She is frightened of shifting her focus away from her dominant role as parent because this raises serious insecurities for her.  She is also afraid of the social judgment she fears she will receive if in addition to losing her husband, she couldn’t even hang on to her children.  She is frightened that her children will in the end prefer their father to her or perhaps worse yet, the eventual stepmother.  Player B (Father), wants equal placement.  He has been satisfied to play a secondary parenting role in the home but the thought of not seeing the children at all for large blocks of time is overwhelming.  He knows that 50/50 will substantially reduce his child support obligation and even expects it to weigh as a spousal support factor.  This gives him the opportunity to buy a home, rather than simply rent, which is what will likely happen if he takes only 34% placement.  He believes that he is equally capable, perhaps even more capable, than the mother is in raising the child.  He also sees it as a gender equality issue.  Unconsciously, he too has other agendas.  He is ambivalent about the divorce and sees an active parenting role as a way to maintain some relationship ties to the mother.  His own father also was relatively negligent and was physically and emotionally absent – he projects his need for more of a father onto his children and also cannot stand the guilt he feels if he does anything less than half time parenting. 

 

In our illustration, although the apparent game is placement of the children, the actual game is a complicated one, with subjective payoffs that might not even be known, never mind expressed.  The truly sad part of this is that even many of the unconscious drives are stimulated by the court game and would not come up at all in the parent game.  

 

(E)  Conventional Family Law treats an extensive repeated game (parenting decisions after divorce) as though it is a normal form game (a one time game with one outcome – a custody schedule).  We have touched on this unfortunate mismatch. 

 

(F)  Because Family Law promotes competitive bargaining strategies, we see the extensively destructive strategies such as the Grim Strategy[9] and the Battle to the Death strategy.  Like politics, the best strategy is one in which the parties do better to negatively portray the other party than to not do so.  In the typical battle in which the mother wants to be the “primary parent” and the father wants “50/50 custody,” the mother will likely do no worse and possibly better if she battles to the finish, i.e. does not settle and tries the matter, and does everything in her power to obstruct, malign, and defeat the father.  The father, if he believes that he has a good chance of getting 50/50 in a trial, cannot do better to settle but will do worse.  He cannot do better than 50/50 in settlement, but in order to settle, he might have to accept less than 50/50.  His best strategy might be to lie (e.g. petition for primary placement although he does not want it) and engage in the same maligning, obstructing, and defeating behaviors as the mother.  Because the strategies treat children as bargaining chips, the independent needs of the children can, and often do, get ignored.  Consider the Parental Alienation Syndrome[10] strategy, for example, which aligns the children with one parent and turns them firmly against the other as a means of winning this battle. 

 

(G) Conventional family law creates a stationary game.  There is a frozen outcome that stays in place unless and until one or both parties play the game again, e.g. file a petition for a post-judgment modification.  Again, this contrasts the court game, i.e. one that is stationary, with the parent game, which is flexible and ever-changing. 

 

(H) Because there must be a physical custody schedule as part of the divorce, there is no exit strategy.  Each party does worse to quit the game than to continue to play it; neither party can do better by quitting the game.  We do see instances in which one of the parents simply quits the game, rationalizing it as better for the child or simply because he/she has run out of money.  This is relatively rare, however. 

 

(I)    The optimism model – we know from research that when people are unsure about outcomes, they tend to be optimistic.  Because an outcome in court is unknown, people tend to be optimistic about how well they will do there.

 

 

Summary.

 

Current conventional family law has rules and mixed payoff structures that promote non-cooperative strategies that include battle to the death and the grim strategy.  Although both parties do better, and their children do better, in a cooperative game, the current rules and payoffs promote a competitive game.  The parties who do not become competitive and who remain cooperative do so in spite of the game of family law.  They establish their own game (amicable divorce), see it as an extensive repeated form game (i.e. an ongoing game of parenting with many decision nodes), and define their own payoffs (e.g. taking the high road, working together on behalf of the children, etc.).  In a sense, they are not rational players of the court game.  The current rules and payoffs promote conflict between parents.  The ones who are conflictual in disputing physical custody are the rational players; the ones who are amicable and cooperative are irrational players of the game as it is set up.  They elect to play the parent game in spite of pressures to play the court game.  They have in essence elected to play a different game.

 

Illustration: Assume the same facts as in the illustration in Par. (D).  Rather than play the court game, however, Player A and Player B play the parent game.  Player A asserts a personal desire to continue to play the primary parenting role, to stay in the homestead with the children that she will likely be unable to afford if she has a smaller income than she would have with the child support, and remain available after school rather than have the children in childcare.  Player B asserts a desire to see the children very often, to the degree possible, to be involved in every aspect of their lives (“I don’t want to be a Disneyland dad like my father was”), and to find a way to end up in an owned residence nearby, rather than a rental.  The experienced reader could devise at least four or five ways to accomplish this, as can these parents.  However, to do so, the mixed games must be separated into simple games (e.g. independent of the placement schedule, how can both parents see the children often).

 

Because family law promotes non-cooperative strategies, the percentage of parents who have conflict is substantially higher than one would predict using models of family functioning.  10-15% of all divorces have conflict related to personal and family pathology and conduct problems.  The rules neither help nor hurt them.  20-30% of divorcing parents choose the “amicable divorce game” in opposition to the court game.  The 55-70% that remain, which should be relatively low conflict cases, choose varying degrees of the non-cooperative strategies and end up with more conflict than one would expect.  If placed in a cooperative family law game, these parents would for the most part choose cooperative strategies. 

 

 

Conclusions

 

The application of game/decision Theory to design a cooperative divorce game is the basic concept that we are addressing.  We can analyze conventional family law and predict a non-cooperative bargaining strategy in the majority of cases.  Could we us the principles and mathematics of Game/Decision Theory to devise a new game, what we call the Cooperative Family Law Game?  The goals would be to have a game that has rules that promote:

 

(1)  Outcomes that are:

1.          Equitable – i.e. relatively fair to the parties.

2.          Educated – the parties are making informed choices (e.g. decisions about physical custody are based on research on children’s needs and interests, not on the basis of property [child’s time] division.).  Educated also refers to decisions based on an honest exchange of information between the parties.

3.          Envy free – although both parties will likely be dissatisfied because there is real loss when parents separate, neither party would trade his or her outcome for the other party’s outcome. 

4.          Efficient – this is a math concept that means that no party can do better without the other party doing worse.  By concretely incorporating subjective values into the decision making process, both parties can have over 70% of the result.[11] 

 

(2)  A process that encourages and rewards cooperative strategies in which the rules improve communication (i.e. honest exchange of information).  The experience of the clients in this legal process would prepare them for the extensive repeated game they will be playing for the rest of their lives.

 

(3)  The payoffs are identified and there is a different game for each; i.e. the mixed games are separated into simple games for which the solutions are based on the facts that are relevant to that game. 

 

(4)  The solution to the games that are most likely to be chosen by the parties are those that represent the best outcomes for children. 

 

(5)  The rules emulate and promote cooperative strategies at decision nodes in an extensive repeated game.

 

(6)  Establishes a positive tit-for-tat strategy that punishes non-cooperative behavior and rewards cooperative behavior. 

 

As a starting point in the devising of a Cooperative Family Law Game, we believe that thoughtful professionals, educated as to the research on factors that actually affect child outcomes, must be willing to engage in real creativity in working with individual families.  Taking the time to discover the subjective payoff structure for a client (e.g. sending to a session or two of counseling and then consulting with the counselor) and for the opposing client, for example, and separating mixed games into simple games, can lead to very creative solutions. 

 

We are in the process of developing a Game Theory based Cooperative Family Law Game and would appreciate any and all input from experienced practitioners.  Please feel to contact Ken Waldron at the address and telephone number listed at the beginning of this paper.