When couples choose divorce mediation in Bethesda, they often want a civil, private, and less costly process outside of the courtroom. But you may be wondering: Do I need to hire an attorney, or is working with a mediator enough?
The truth is, a divorce attorney and a mediator occupy two very different roles. Even if your mediator is an attorney, during mediation, they are not your attorney, and they do not provide legal advice or counsel to either you or your spouse. They are strictly a neutral third party who helps you navigate critical decisions.
That is why consulting with a lawyer before or throughout mediation is worth considering. We understand you want to keep legal fees as minimal as possible. But you do not want to accidentally agree to anything that is not in your best interests.
Hiring a lawyer does not mean the process becomes combative. Mediation is still intended to be cooperative and civil. Here is why couples in Bethesda, Maryland, and beyond hire our attorneys at Webb Soypher McGrath for legal counsel during mediation.
Know Your Rights in Maryland
Before you attend divorce mediation sessions, consulting with a lawyer first can help you better understand your rights and arrive prepared. The mediator does not take sides; they are there to facilitate decisions. For this reason, the mediator may not tell you about rights or options that benefit your position.
Without legal guidance, you may agree to things that the court cannot uphold or that work to your detriment. For example, in mediation, one spouse may offer the other the house for five more years, without knowing that use and possession (the right to keep living in the family home) is capped at three years in Maryland. Spouses can agree to a longer period, but if you offer five years, you are giving up more than a judge could order, and you should receive something in return.
Without an attorney’s guidance, people can also make promises a court will not approve, or leave a spouse expecting something a court won’t allow. We have seen couples agree in mediation that one spouse does not need to pay child support. But in Maryland, child support cannot be waived, because the right to support belongs to the child. A judge may reject that agreement, leaving the couple to renegotiate.
Be Prepared for What to Say
Off the top of your head, is it better to have three of a kind or two pair? You need to know before you start betting on the hand.
The same goes for divorce mediation: you need to know how strong your position is before you negotiate. At Webb Soypher McGrath, we make sure you go in knowing what you should (and should not) agree to. Discussions in mediation are not legally binding, but walking back an offer can quickly make a divorce more contentious. A divorce attorney can counsel you through difficult decisions before you commit to anything.
For example, your attorney can help you trace non-marital property, so you do not accidentally give away something that may not be subject to division. If you inherited stock from a parent and later sold it, we can help you trace the proceeds back to their origin and prove they were not from your marital earnings. Without an attorney’s guidance, you could overlook it and lose that money in mediation.
What to Expect Through Each Stage of Divorce Mediation
Once you have found an attorney who feels like a good fit, we recommend meeting with them before starting mediation. Your attorney will help you understand your goals, set realistic expectations, and explain your legal rights. Your attorney will also help you gather relevant documents, such as financial records and contracts, and strategize how to negotiate fairly with your spouse.
During mediation sessions, some couples choose to attend with their lawyers present, while others meet only with the mediator. If you and your spouse decide to include lawyers in mediation, they are there to make sure your rights and goals are clearly understood. As you discuss each issue and brainstorm, your attorney will offer legal advice to ensure each decision aligns with the law and your best interests.
Once you reach an agreement, have your attorney review it before you sign. Our attorneys meticulously review settlement documents to eliminate any ambiguities. We may suggest coordinating with financial advisors or other professionals to ensure the agreement is properly implemented, such as preparing a qualified domestic relations order (QDRO) to divide retirement accounts. We then formalize the agreement into a legally binding document to submit to the court.
If mediation is unsuccessful, your attorney keeps working on your behalf. Your attorney will continue negotiations, draft new settlement proposals, and, in some cases, begin formal discovery to gather any missing information.
Frequently Asked Questions About Divorce Mediation
Can my mediator give me legal advice?
No. A mediator is a neutral third party, even if they are also an attorney. They can explain the process and help you and your spouse reach agreements, but they cannot advise either of you on what is best for you.
Can my spouse and I share one lawyer?
No. One attorney cannot represent both spouses in a divorce, because their interests conflict. Each spouse can hire their own attorney to advise them during mediation.
Is a mediated agreement binding in Maryland?
Discussions during mediation are confidential. Once you sign a written agreement, however, it can be enforced as a contract and made part of your divorce judgment. That is why you should have your attorney review it before you sign.
Enter Mediation Feeling Supported & Prepared
If you are considering divorce mediation in Bethesda, Maryland, or Washington, D.C., our experienced attorneys at Webb Soypher McGrath offer both mediation services and independent legal counsel, though never as both mediator and counsel in the same case. As your divorce attorney, we take the time to understand your perspective and goals and create a fully tailored strategy for your case.
Even if you are just exploring your options, having a knowledgeable attorney on your side can significantly influence how your case develops. Contact our family law firm at (301) 298-8401 to schedule a consultation today.
This article is for general information only and is not legal advice. For advice about your situation, please contact an attorney.
