One day, I firmly believe that Maryland will 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, the current state of ethics relating to the practice of mediation and the practice of law in Maryland, as I interpret those standards, do not permit one attorney to 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.
While I believe people should be able to make their own choice to seek out representation, that is not the state of ethics in Maryland. If one day those rules change, and I believe that they will, 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 "I didn't understand the legal ramifications of the Separation Agreement" and challenge the validity of the Separation Agreement. Thus even if the committee on legal and mediator ethics in Maryland reverses its current position and permits separation or divorcing folks the right to choose the level of risk they are willing to take when forming legal contracts, {as a mediator,} a good mediator will 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:
It is the "final" part which is in jeopardy when there is no attorney review. Most people come to mediation for two reasons: It is less stressful and more economical. If the legal Separation 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 will still save money through divorce mediation when a mediator drafts your separation agreement, since an attorney review of a separation agreement is far less costly than two attorneys drafting the separation agreement after many attorney hours of negotiation for both parties involved. Now before I get a rash of negativity from mediators who feel that attorney advice is not a necessity, I will qualify my position like this: Most things in life involve balancing a risk versus a cost to avoid the risk assessment. I believe that intelligent folks can make this assessment themselves and don't need the paternalistic sweeping protection of an association run and overseen by attorneys ("fox guarding the hen house" comes to mind) 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. But in my humble opinion, if there is room on the credit card, or home equity line of credit, etc., there is room for rational "Legal Separation Agreement" insurance, i.e. an attorney review of a mediated legal Separation Agreement.
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Nancy Caplan, Esquire is an attorney mediator practicing divorce mediation in the State of Maryland. Servicing the follow Counties and cities: Baltimore County, Baltimore City, Howard County, Anne Arundel County, Harford County, Baltimore, Towson, Reisterstown, Owings Mills, Catonsville, Lutherville, Timonium, White Marsh, Hunt Valley, Columbia, Ellicott City, Clarksville, Bel Air, Glen Burnie and surrounding counties and cities.
