Attorney consultations may be useful but is not required, before the mediation process commences.
Attorney consultation may be useful, but is not required, during the course of the mediation negotiations in between sessions, or if the parties elect to have attorneys present at the mediation.
Independent attorney consultation to review a formal Agreement drafted by the mediator is required.
Mediation works best when the negotiating parties are informed and knowledgeable. Understanding your legal rights and obligations is always better than not understanding your legal rights and obligations. You might not know whether your spouse has or is consulting with an attorney. Therefore, even if mediation is the settlement process you seek, having a consultation with an attorney is often a useful step in the negotiating process. However, consultation before or during the mediation negotiating process is not required.
Nancy S. Caplan, Esquire, of Maryland Divorce Mediation and Legal Services, strictly requires that each party have an independent attorney review of any formal Agreement that she drafts. This requirement is set forth in the mediation participation agreement signed by the mediator and the parties prior to the commencement of the first mediation session. The parties shall be asked to sign an acknowledgement of this agreement again prior to drafting by the mediator. This is to assure the integrity of the process and is consistent with Maryland law and Maryland legal ethics.
Independent attorney review by each party is the best way to assure that your spouse cannot challenge the enforceability of the Agreement in the future based on the “I didn’t know what I was doing” defense. You may be able to find a mediator who only suggests that you have an independent attorney review without taking the reasonable steps necessary to ensure the requirement is met. However, if one or both spouses fail to have their suggested review, the Agreement may be vulnerable to legal challenge by either party. It is the goal of Nancy Caplan’s mediation process that the parties arrive at a fair, practical and final agreement in order to save you time, aggravation and money. If the Agreement is subject to challenge in the future, have you saved yourselves time, aggravation or money? If the Agreement may not be enforceable, why are you seeking an Agreement? In the State of Maryland, and in most jurisdictions, it is not professionally ethical for a single attorney (even an attorney-mediator) to draft a Marital Settlement Agreement (sometimes referenced as a Property Settlement Agreement or Separation Agreement) on behalf of a divorcing couple. If you try to avoid the attorney review of your settlement agreement and are successful, how can you be sure your agreement will be enforceable if it is subsequently challenged by your former spouse or co-parent?
Determining whether and/or when to have a legal consultation before or during the mediation process varies from case to case. Many mediation participants approach mediation without first consulting attorneys. If the parties have maintained the financial “status quo” and no emergency issues seem pressing, sometimes having your legal consultation is more useful after a session of mediation. After the first session of mediation, each party will have a clearer idea of what each party is thinking and feeling. Therefore a consultation with an attorney for legal advice may be more specific after the first mediation session. If legal fee funds are limited (they usually are) then utilizing an advising attorney should be timed to be cost-effective.
Lastly, if you are dividing an retirement account which is a qualified retirement account (i.e., a 401(K), 403(b), TSP, pension, etc.) you may need an attorney to draft the special order which is required to order the retirement plan administrator to make the division upon or after divorce. Many attorneys who provide this service do so for a flat fee. IRA’s often do not require the special order to divide the funds at the time of the divorce.