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How Will We Reach a Fair, Practical and Final Agreement in Mediation

At some time in the future Maryland may expressly permit attorney-mediators to draft formal Legal Separation Agreements also known as Marital Settlement Agreements for people who are not represented by his and her own divorce attorneys. In a few states, this is already the case. However, in the current state of ethics relating to the practice of mediation and the practice of law in Maryland, one attorney may not ethically draft a formal Separation Agreement for unrepresented parties in a divorce matter. In Maryland, when an attorney mediator drafts a formal Separation Agreement, the ethical attorney mediator will only do so if both parties have independent attorneys for the purpose of reviewing the Separation Agreement.

If one day those rules change, that change will come with additional challenges. This is because if divorcing couples don’t avail themselves of the attorney-review stage of mediated formal Agreements, then those couples 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 that he or she did not understand the legal ramifications of the Separation Agreement and may challenge the validity or enforceability of the S Agreement.

Therefore the underlying reasoning to requiring independent attorney review is sound. Even if the committee on legal and mediator ethics in Maryland reverses its current position and permits separation or divorcing couples the right to choose the level of risk they are willing to take when forming legal contracts, mediators will always strongly urge and encourage divorce mediation participants to obtain attorney reviews, except in limited cases (i.e. no children, no assets, no debts.)

As a mediator there are 3 goals in divorce mediation:

  • To reach a “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 “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
  • a “Final” agreement.

It is the “final” part which is in jeopardy when there is no attorney review. Most people are motivated mediate their disputes for two reasons: It is less stressful and more economical.

If the legal Settlement 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.” You are likely to save money through divorce mediation when a mediator drafts your separation agreement, since an attorney review of a separation agreement is most often less costly than two attorneys drafting the separation agreement after many attorney hours of negotiation for both parties involved. Many choices in life involve balancing a risk versus a cost to avoid the risk assessment. One might reasonably feel that intelligent folks should be permitted to make this assessment themselves and don’t need the paternalistic sweeping protection of an association run and overseen by attorneys 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. However, family mediations may have a higher level of emotion than other disputes. It may also be that only one party has emotional control of the situation. Parties would do well to remember this: The opposite party’s attorney review may be the best defense to the opposite party’s future challenge to the enforceability of the Agreement. In other words, your spouse’s attorney review serves to provide you with a greater expectation of finality of the Agreement terms.

If your goal is to arrive at a fair, practical and final Agreement, then choose a process that helps you achieve that goal. Bend, don’t break- mediate with Nancy Caplan, Esquire, at Maryland Divorce Mediation and Legal Services.

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