Will the Mediator Tell Us What Our Legal Rights are?
The Mediator may provide legal information but cannot provide legal advice because the Mediator is a neutral party and legal advice given to one party may prejudice the other party and vice versa.
“Legal advice” is defined as the opinion of a lawyer about how the specific facts of your case would be applied under the law of Maryland by a judge and usually provides a range of probable outcomes if the case was to be heard in trial. Since each county has several judges, outcomes may vary from county to county and/or from judge to judge. A mediator should not provide you with specific legal advice, but a good attorney-mediator should be able to alert you when a specific question arises for which either party or both might need a legal opinion. Recognizing legal issues is why an attorney-mediator is a good choice to handle all of your family law mediation matters. A non-attorney mediator may lack the subject matter expertise necessary to recognize legal issues.
“Legal Information” is generalized information about legal matters, such as “judges may decide use and possession awards relating to a family home.” The legal information does not predict what might happen in your specific case. It is information provided to the parties so they can understand their negotiating options.
For example, a judge would have the authority to order use of family home by a party having a minor child, but the use of the family home cannot exceed three (3) years from the date of divorce. Does that piece of legal information tell you what the judge would do in your case? No. A judge would decide, based on all of the facts of your case what time period is equitable. The mediator helps the parties discuss the facts of their circumstances so that they can be the judge of the reasonableness of their choices. Is a child graduating middle school in two years? Is that the appropriate use period? Are there several children and a low monthly mortgage? Is the monthly mortgage enormous? How are the children adjusting? How long have the parties been separated with one party using the home? As another example, the parties can discuss all of the factors considered by a judge to determine Alimony. The Mediator can tell you what factors are considered in an alimony matter. That is different than getting a legal opinion about what a judge in the county in which your case would go to trial would do based on the litigation experiences of your lawyer. Of course, the attorney review of the draft Marital Settlement Agreement will provide you with the opportunity to ask for legal advice on all of the issues.
Although the Mediator will not give you legal advice, the Mediator shall run a calculation of Child Support pursuant to the Maryland Child Support Guidelines formula which is the law in Maryland. To calculate Child Support, the parties will need to agree upon income, physical custody of the Children and major expenses of the Children and the formula will calculate a Child Support sum. Mediators, lawyers and judges all utilize the same formula and so, the facts of the case, plugged into the law, will produce a figure which is often a good predictor about what might happen in court. That sounds a lot like legal advice. Of course there are exceptions to the applicability of the calculated sum, including cases involving families with exceptionally large incomes. Your Child Support calculation worksheet will become part of your Marital Settlement Agreement, and therefore your independent attorney will review all of the figures and the confirm the calculation.