You’ve Decided to Mediate Your Divorce. Should You Bring a Lawyer?

Deborah ReiserDeborah Reiser

You’ve decided to mediate your divorce case. You wisely decided to avoid the expense, acrimony, and uncertainty of a contested court proceeding in favor of a negotiated resolution with the assistance of a neutral third party. You’ve selected a mediator, and now are faced with the choice of whether you should go to mediation with or without your lawyer.

There are pros and cons to both approaches, and the decision deserves thoughtful consideration.

When You May Not Want an Attorney

Obviously, mediating without two additional lawyers present is, at first, less expensive. The math is easy — you are paying two fewer professionals for the real time of mediation. If you and your spouse are able to communicate civilly, if the issues are not mired in complexity, if positions are not hardened in concrete, and if both sides recognize the wisdom of compromise — then, by all means, consider meeting with the mediator alone.

When You Should Consider Bringing an Attorney

On the other hand, what if one spouse holds all the advantages, financially and otherwise?

  • What if one spouse is unable to appreciate the value of achieving a resolution even if imperfect?
  • What if the complexities of resolution are outside your comfort zone?
  • What if there are issues which require specific expertise, such as identifying and valuing business interests? Or dividing retirements and pensions?

Having your lawyer present in real time can make the difference between success and disaster.

Remember: The mediator is a neutral. S/he cannot offer legal advice to either party; rather, the mediator’s job is to get the parties to agreement. There may well be issues where you need actual advice about the wisdom of your position, about the risks and exposure you face with different choices, or about whether your negotiating strategy is even prudent or smart.

As a neutral, a mediator should not say to you “You would be unwise to do this, this is a mistake for you.” If your lawyer is present, you can address strengths and advantages, pitfalls and risks in real time. Otherwise, stopping the mediation to consult with your lawyer and then re-grouping not only slows progress; actually, the fits and starts can easily cost more money over the long run.

Similarly, suppose you reach a tentative agreement in mediation. The mediator should advise you to consult with your own attorney before signing what will be a binding contract. Suppose further that on consultation with your lawyer you become aware of a major issue you failed to address, or worse, resolved in a manner that can actually cause you harm. Then you have to return to the negotiating table. You’ve lost time, money and quite possibly have created a more intransigent bargaining position on the other side.

At the very least, you should consult with your own lawyer In advance of mediation in order to become educated as to your rights and obligations under the divorce law, to think through your goals and areas of potential compromise, and to “game-plan” your negotiating strategy. Discuss with your lawyer whether to have him/her accompany you to the actual mediation. Then, and only then, decide what course is best for you.

My soon-to-be Ex and I are Friendly: Do I Really Need a Divorce Lawyer?

AvatarCasey Florance, Principal

With the proliferation of online resources, and the ongoing pandemic, it is both more tempting and more possible than ever to craft your own Settlement Agreement from the comfort of your living room.

Online “forms” abound, and services like Legal Zoom can help you feel like the “do-it-yourself” (DIY) agreement is tailored to your particular situation. As a result, divorce lawyers frequently get asked: Do I really need a lawyer?

Although it is hard to advise people how to avoid needing my services, I typically tell potential clients that the answer really depends on the circumstances of their case and level of complexity of their custody and/or financial situation, as well as the dynamic between them and their soon-to-be Ex. There are a lot of resources and dispute resolution processes available to the self-represented person (read: divorcing person who does not have an attorney), but there are also many pitfalls.

Regardless of the chosen path and circumstances of the case, however, one thing I always tell anyone who will listen is this: you absolutely must meet with an attorney to review any Settlement Agreement BEFORE you sign it. Here’s why.

  1. It is important to be certain that the language of your Agreement actually sets forth the terms you have agreed upon.

    Just because you and your spouse/co-parent are comfortable negotiating directly and coming to agreed-upon resolutions for the issues arising out of your relationship, does not mean you are comfortable translating those agreed-upon concepts into written agreement terms.

    If your goal is to avoid Court and costly litigation while making your own decisions about your family, then your DIY Settlement Agreement will not serve its intended purpose if you have to spend money later litigating over what your agreement was supposed to say, or worse, seeking the Court’s interpretation of your agreement because you two have a dispute about what your agreement means. It is also important for you to understand your agreement so you know what you need to do once it is signed in order to comply with it moving forward.

  2. You don’t know what you don’t know.

    Many online tools for drafting DIY Settlement Agreements contain a series of options you self-select based on the categories listed. But more often than not, there are details about your custodial situation — or your finances, assets or debts — that are not represented in these pre-drafted menus. Or the options do not adequately capture your specific situation.

    The danger here is that once you sign an Agreement, you may have waived rights you didn’t even realize you had. Furthermore, by neglecting to include entire topic areas in your Agreement, you may have accidentally waived your ability to later address those topics.

  3. There is very likely “boiler plate” language embedded in the form agreement that makes certain provisions unable to be modified for any reason.

    In Maryland, there are often sections of a Settlement Agreement that are unable to be modified by a Court once the agreement is signed by both parties. For example, it is typical for agreements to state that the division of assets cannot be modified by the Court at any point in the future.

    It is also not unusual for time-bound alimony payments to be non-modifiable. As a result, it is extremely important to understand which provisions of your Settlement Agreement are able to be modified in the future, and which ones are not. Failure to understand your agreement – when you had the opportunity to review and understand it before signing it – is an unlikely basis for undoing your Agreement later if you are unhappy with it. And signing an Agreement which says that certain provisions are not able to be changed by the Court may leave you with little recourse.

  4. Ensure that the Agreement meets your goals.

    If you have attended mediation with a third-party neutral and the mediator drafted your Agreement, it remains important to have it reviewed by your own attorney before you sign it. You will want to ensure that the agreement meets your individual goals. Just as important, you want to make sure you actually understand each and every provision of your agreement. Many people don’t realize that a mediator does not represent either party’s interests and cannot provide legal advice; rather the mediator’s goal is to facilitate a resolution.

I recommend anyone going through a divorce to have an attorney guiding them through the process, explaining rights and obligations, strategizing to reach goals, and advocating for their interests. For many people, this option is not feasible for a variety of reasons. When that’s the case, it is nevertheless imperative to meet with an attorney to review your draft Settlement Agreement before you sign it.

Litigation vs. Negotiation – Which Path Is the Right One for You?

Chris RobertsChris Roberts, Principal

Most of us have seen one of those dramatic courtroom movies that glamourize the court process – perhaps Tom Cruise’s fiery cross-examination of Jack Nicholson in A Few Good Men, or Gregory Peck’s moving closing argument in To Kill a Mockingbird

But litigation, the contested court process by which parties resolve their differences, is nothing like the process we see in our favorite legal thrillers. It is a long, slow, and expensive process. Many people consider it the most painful, difficult process of their lives.

What does the process entail?

Unless the parties can resolve the disputed issues in advance of trial, litigation usually culminates in a bench trial, where a single judge considers the evidence and arguments presented, and issues a ruling. 

The process typically begins with a scheduling hearing, where the case is scheduled in calendar-like fashion, including deadlines for the completion of the discovery process, perhaps a date by which the parties must participate in mediation or another alternative dispute resolution process, and a trial date.

Depending on the jurisdiction, the process can take a year or longer. And it is invasive. Discovery alone can include dozens of document requests, written questions that must be answered under oath, and potentially depositions of the parties, which in Maryland can last as long as seven hours straight.

At trial, each party presents his or her evidence, including witness testimony and the introduction of documents. At the conclusion of the trial, the judge renders a ruling and, ultimately, a divorce decree.

So why would anyone subject themselves to this?

You might be thinking, “This process sounds terrible, why would anyone subject themselves to this?”

For one, it guarantees an end to the process. If your spouse or co-parent is unwilling to engage in an alternative process to resolve your issues, litigation might be your only option. The court process may be slow, but it moves predictably and inexorably to a final result, after which you can go on with your life.

In some cases, there are issues on which the parties truly cannot reach agreement. In the child custody realm, this could include child support, a parent’s relocation, mental health or substance abuse issues, or physical or psychological abuse of a child. In a financial context, there may be a dispute about alimony, a party’s actual income, the value of a party’s business, or whether a party’s trust interest or inheritance should be considered in the resolution of financial issues.

What are the alternatives?

Parties are always free to resolve their issues without resorting to a contested court process.

There are a number of alternative dispute resolution tools. Some of the more common approaches include:

  • A traditional negotiation involving attorneys, where parties develop settlement offers with the assistance of their counsel, who then negotiate on behalf of their clients to resolve the issues
  • Mediation, a voluntary process where the parties meet with each other and a neutral, third-party mediator, often with counsel present or advising them
  • Arbitration, in which a third-party decision-maker considers a presentation of evidence and argument from each party and renders a binding decision

All of these approaches are generally less expensive and quicker than the litigation process. And this is not an exhaustive list of the out-of-court approaches available to people to resolve their divorce or child custody issues.

Which process is right for me?

In almost all divorces, parties are well served in the early stages to consider an out-of-court process.

Which process will work best for you depends on a multitude of factors, including the dynamic between you and your spouse or co-parent, the substantive issues in the case, the financial issues and wherewithal of one or both parties, any external time pressures that might be involved, and the professionals assisting the parties.

Do I have to pick just one process?

No. Typically, it makes sense to stick to one out-of-court process at a time, and hopefully your first attempt at alternative dispute resolution does the trick. But if not, you can always move to another process, including litigation.

It is important to understand that you can continue in a non-litigation process at the same time a litigation is pending. In fact, courts encourage these continued efforts to resolve the issues out-of-court, even as the court process unfolds. Think of negotiation and litigation as running on parallel tracks. They are separate and distinct processes, but they are connected, and one process often can impact another, ideally in a way that benefits your position and hastens resolution.

Welcome to Your Source for Divorce Law

The Divorce/Family Law Group at Lerch, Early & Brewer is proud to present our new Divorce Law Source blog.

In an age where Google searches and web browsing are the go-to for most people to find information about everything, we are thrilled to provide an easily accessible one-stop shop for all things family law and divorce.

Featuring content authored by each of our accomplished and skilled family law attorneys, we encourage you to use this forum to find the answers to commonly asked legal and practical questions our clients confront pre- and post-divorce, review explanations and analyses of pertinent legal concepts and principles, and receive updates on new practices, rules, laws, and the family court system in Maryland and D.C. We will be featuring new posts and content each week. We look forward to welcoming many regular followers and invite you to recommend desired topics for future posts. Please subscribe to the blog on the right-hand side of this page.

Lerch Early’s family law attorneys represent clients in every facet of family law including divorce, custody, child support, alimony, property division, modifications of custody, child support, and alimony, prenuptial and postnuptial agreements, litigation, divorce and custody settlement agreements and alternative dispute resolution, guardianship, and adoption. For more information, please check out our website.

We hope to see you soon on our blog!

In Health,

Heather Collier and Erik Arena
Co-chairs, Divorce/Family Law Group