Mediating Divorce Agreements
Mediating Divorce Agreements, Maryland State Bar Association Bar Bulletin Newsletter
(April 15, 1999)
By Julie Landau
Court ordered mediation for child custody and visitation disputes has been in place for years. In 1981, California became the first state to enact legislation mandating that all parents must enter into mediation before a custody or visiting hearing is heard. Under Maryland Rule 9-205, promptly after an action is at issue, litigants in cases involving contested custody issues are referred to mediation, unless there is a genuine issue of physical or sexual abuse of a party or child.
Research confirms mediation is successful in more than one-half of the cases, and that parties with mediated outcomes are less likely to have post-agreement disputes. With the enactment of Title 17 of the Maryland Rules relating to Alternative Dispute Resolution (ADR), there are even more opportunities for mediated resolution of the financial aspects arising out of a divorce.
Mediation allows both parties to have their “day in court” and also become educated about the realities of litigation. Often, people just need to tell their story to someone who will listen. If the mediator does not like the story, the client will not see it thrown back in their face with a crippling, enforceable order that in most cases does not take into account their particular circumstances. Mediation involves the confidential presentation of a case to a single neutral party. The mediation process generally is informal. The parties themselves may be main presenters, and attorneys may serve as resources. Each party can evaluate the opponent’s information and initiate and evaluate settlement proposals.
In mediation, rules of evidence do not apply, witnesses are not called. Exhibits may be used, but are more limited than in a trial. It may be conducted in a single session or may be spread over a period of time. The purpose of mediation is bringing the parties to a mutually agreeable resolution. The mediator may make recommendations or suggestions, but not as a binding, final decision.
Mediation is appropriate where discovery or disclosure of relevant evidence has already occurred and where there are no smoking guns that the opponent is not already aware. It is also appropriate for clients desiring privacy during the proceedings. Family law disputes are particularly appropriate for mediation because both parties may need to preserve an on-going relationship, especially when children are involved.
A lawyer may assist the client in many ways. Prior to the mediation, the attorney should explore any client concerns. The process should be explained and the client should understand the difference between mediation and litigation. The lawyer should ask the mediator how the mediation will be conducted and communicate this information so the client knows what to expect. Determine from the mediator, his or her comfort with your involvement in the mediation. Generally, the lawyer may help a client achieve an agreement that the client believes is fair, and which is based on all reasonably available information.
From the onset of mediation, the lawyer can serve as a coach and advisor. Lawyers should assist the client in the gathering and presentation of financial information, form an agenda, identify issues to be addressed in mediation and assist in determining the level of financial disclosure necessary. Furthermore, one will evaluate and formulate a negotiation position after financial information and legal documents have been exchanged. The objective of reviewing these documents is identifying which documents and elements are important.
Helping a client develop an agenda and plan for negotiation may be one of the most important roles for the attorney. As the client’s legal counsel, you can assess the strengths and weaknesses of the client’s position, and various proposals. This can be done as monitoring process throughout the mediation process. Maintain on-going dialogue with your client and the mediator to learn about progress and be available to help your client either through careful review or by actually attending sessions together. You must determine whether the client will attend alone or whether you will accompany the client as a coach. Be flexible and change your role as necessary.
If the mediator gets off track, contact the mediator and find out what the problem is. Communicate this information back to your client. Be supportive of the mediation process. Review important legal documents and advise your client about their meaning and importance in the mediation. Make sure that your client keeps you in the loop, so that you get the documents before any agreements are made
Lawyers may assist in analyzing financial information presented by the other spouse. An attorney can help the client identify questions and issues raised in financial information presented by the other party. If outside experts are needed, consider using a neutral expert rather than having both parties retain their own. As a lawyer, you can be helpful in the selection of an expert, and interpret the expert’s findings for the client.
Another major role of the lawyer is identifying the legal issues, educating the client regarding current law, and helping formulate a legal position. Clients who understand their best and worse case scenarios are better able to negotiate for themselves. They will recognize legal issues raised by the mediator or the other spouse. If there are issues raised that the client does not understand, they can bring them back to the attorney for answers.
Lawyers assist clients by attending mediation sessions and participating directly in mediation. Indirectly, they may participate by advising clients before, during or after mediation sessions. In cases involving complex legal issues, it is advisable for the lawyers to attend and participate.
During mediation of financial issues, anticipate that the mediator will ask each lawyer to identify the issues. One should provide the mediator with enough information to familiarize them with the case. Do not overwhelm them with too much detail. Try to present the information prior to the mediation session.
For example, in a mediation of financial issues, one typically presents the mediator with the client’s financial statement, listing all the assets of the parties and a schedule showing each party’s income for the past several years. If settlement discussions have been tried but failed, present a summary of those discussions in an easily readable ledger or schedule. If a proposal is initiated at the mediation session, reduce the proposal to a schedule that identifies the net result for each party. In a mediation session where lawyers participate, the mediator may want the parties to caucus-go into separate rooms. Do not object. Follow the flow suggested by the mediator.
In addition, you may also review draft agreements reached in mediation or draft the agreements yourself. Meet with your client to review the agreement. Clients who have completed mediation with a draft agreement are often apprehensive about their attorney’s response to the agreement. It is a lawyer’s duty, as well as client’s expectation that their lawyer will point out problems. The lawyer reviewing the agreement should identify future difficulties the agreement might cause. Any review should help the client understand the agreement and consider carefully whether any proposed changes could improve it.
On the same token, pointing out the positive aspects of the agreement provides an overall and true assessment of the agreement. Be sure that the agreement’s language is understandable to the client. If an agreement seems inequitable, question the client about the motive for the end result. Find out the trade-offs your client made and why. Make sure the client articulates the benefits of the agreement and what if any concerns the client has.
There is little to fear about mediation. Clients leave the process, invested in their agreement, and committed to the fulfillment of its terms. Encouraging this process helps restore faith in this system that resolves disputes, and shows client that the legal community is concerned about solving problems, rather than making them.
Julie Landau is an AV rated Baltimore attorney specializing in domestic relations law. She completed mediation training in 1989.
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