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Both mediation and collaborative law are voluntary processes where the couple make all the decisions,. This distinguishes these processes from litigation where the judge or magistrate decides for the couple. This does not foreclose the couple from accessing professional guidance – and in collaborative law that professional support is built into the collaborative team. But it does mean that all decisions are ultimately the joint product of the divorcing couple.  It is essential that both parties understand and agree to the process –  that they will agree to listen to and try to understand the interests of the other, they will both fully disclose all relevant information, and they will both maintain the status quo with regard to income, spending, assets and liabilities.

The next step is for the couple to gather all information about their income and expenses, assets and liabilities, and other relevant information, such as access to medical coverage, health of each of the couple and, if any, their children.  This process is done without judgment as to which party will retain all or part of any asset or liability, or any decisions regarding parenting and support issues.  The purpose of this step is to get all the information on the table for both parties, so that a decision based on full knowledge can be made. The purpose of documenting income and expenses is twofold – to provide the data needed to make any decisions regarding support, and to help each of the parties plan for their future economic life.  At this stage, though,  no decisions are made. This is only information gathering.

This is an important, and often challenging step in the process. Each of the couple will identify what their own interests are. This could otherwise be described as a list of what is most important to them. This is not a listing of “positions” but of the underlying reasons for the outcomes that each of the couple seeks. For example, “continuing to live in the marital home” is a position, not an interest. The underlying interest, in this case, could be, for example, a feeling that it is very important that the children’s lives be disrupted as little as possible, or it could be, say, that there is a need to maximize the value of the marital estate for the security of both parties and that the real estate market, at a particular time, is not favorable for an immediate sale of the home. There could be many other interests related to the marital home that would be uncovered at this part of the process. Interests relate both to each of the parties and to the needs of any children, and often revolve around desire for economic security, issues of safety and personal security, special requirements of the children, including their education and social development, and the desire to maximize career opportunities. The types of interests involved are as unique as the couple who is going through this process, and identifying interests allows them to tailor their agreement to meet, to the extent possible, the needs of both them and their children.

With all the relevant information available, and an understanding of what the interests of each party -as well as mutual interests – are, the couple will then brainstorm about all the options that are available to them. Ideas should be presented “without attribution” – meaning this is not negotiation – the parties are not stating positions. They are, instead, coming up with as many possible ideas as they can. When done fully and openly, this part of the process can often lead to solutions that neither party had contemplated going in. Sometimes even an idea that seems crazy or impractical can generate a creative agreement that works for both parties and is in the best interests of their children.

At this final step, all options are evaluated and discussed, and the process of decision making begins.

Although these steps are presented in linear fashion, it is not at all unusual for the couple to move back and forth among the steps, as needed. For example, in the process of evaluating options, the couple may be able to identify new options. The only essential factor is that the couple should not skip a step to move to a later one. It is the job of the mediator or collaborative team to make sure this doesn’t happen.