Nancy S. Caplan, Esquire

Nancy S. Caplan, Esquire
Bend Don't Break- Mediate!

Pages

Wednesday, March 2, 2011

Mediation and Attorney Consultation and Review


I firmly believe that one day, Maryland, like a few other States will expressly permit attorney-mediators to draft formal Legal Separation Agreements (i.e. also known as Marital Settlement Agreements) for folks who are not represented by his and her own attorneys. What this will mean if it happens is that folks will put themselves at risk in the future for a possible challenge against the Separation Agreement's validity by one party or the other. This is because an attorney review of a mediated legal Separation Agreement for each party is the insurance that neither party can say in the future "I didn't understand the legal ramifications of the Separation Agreement" and challenge the validity of the Separation Agreement.


Thus even if the Committee on Legal Ethics in Maryland reverses its current position and grants separation or divorcing folks the right to choose the level of risk they are willing to take when forming legal contracts, as a mediator, ethically I will feel the need to scare the pants off of mediation participants to compel them to obtain attorney reviews, except in limited cases (i.e. no children, no assets, no debts.) As a mediator I always tell my participants that the goal is to reach a (1) "Fair" agreement- one that reflects a healthy collaboration of the standard of fairness set forth in the law and the personal standards of fairness of the parties; a (2) "Practical" agreement- one that when implemented is workable by the parties when living in real life (i.e. no one agrees to pay or take on more than they can afford, or a party doesn't agree to a custody schedule he or she can't keep); and (3) a "FINAL" agreement.


It is the "final" part which is in jeopardy when there is no attorney review. Most people come to mediation for two reasons: It is less stressful and more economical. If the legal Separation Agreement is vulnerable to challenge in the future (meaning one party is now filing suit to invalidate the legal separation agreement in whole or in part), how has the mediator alleviated the stress or the expense of divorce? Where's the finality? And thus avoiding an attorney review to save money is a bit "penny-wise, dollar foolish."


When obtaining an attorney review it is important to understand the quality of the legal opinion you seek. The question each party will ask is this "How would the issues be decided in a court of law" because the answer to that question gives a party the parameters of his or her negotiating strategy. To get the most accurate answer to that question, you have to ask a lawyer with litigation experience in the county in which you intend to seek the divorce.


For instance, if you live in Harford County, but can't find a Harford County Separation and Divorce Mediator, you might seek out me, a Baltimore County Separation and Divorce Mediator. However, just because I'm a Baltimore County Mediator does not mean that the reviewing attorneys should be from Baltimore County. Ideally the parties will seek legal advice and review from Harford County attorneys. After all, which attorney can best tell you how the individual judges in the county in which the parties' live might decide child custody, child support, alimony or property division. Judge "A" from Baltimore County might tend to favor joint physical custody; Judge "B" from Harford County might consistently rule against joint physical custody. Only the true litigation attorneys who practice regularly in Baltimore County, or Harford County, or as the case may be, can provide you with real life advice on the individual differences between the judges, to provide you with the best possible quality of legal advice.


Now before I get a rash of negativity from mediators who feel that attorney advice is not a necessity, I will qualify my position like this: Most things in life involve balancing a risk versus a cost to avoid the risk assessment. I believe that intelligent folks can make this assessment themselves and don't need the paternalistic sweeping protection of an association run and overseen by attorneys ("fox guarding the hen house" comes to mind) to make the choice for them. Armed with rational information and an accurate perception of their specific financial condition, people should be able to reasonably make this decision on their own. But in my humble opinion, if there is room on the credit card, or home equity line of credit, etc., there is room for rational "Legal Separation Agreement" insurance, i.e. an attorney review of a mediated legal Separation Agreement.