In Montgomery County, where we used to live, we had more lawyers per square mile than anywhere in the United States…or so they said. In Talbot, we may not have that many, but according to the Talbot County Bar Association there are 106 current members. A question I often get is, “If I go to mediation do I need a lawyer?” The simple answer is that it is not required. Mediation is a straightforward process, not governed by complicated court rules and legal procedure. Most people can successfully navigate the process on their own. Further, people who are mediating are less likely to need an advocate since they are trying to find common ground and compromise. They are not trying to convince a judge or jury of their position. The participants decide the outcome, not the mediator or the court. Of course, if you are in the midst of a legal action, you likely have an attorney already. Your decision concerns their role in the mediation process.
There are situations where an attorney can be very helpful. There are different roles an attorney can play. In some situations, especially where property rights are being affected, it is a good idea to consult a lawyer. This would be especially true in divorce mediation where the disposition of a house, pension, or retirement plan can be complex. A lawyer can help sort through the consequences of certain financial decisions and settlement terms, allowing you to make the best decision.
If you choose to use a lawyer in the mediation, be sure they understand your expectations concerning their role. You can ask them to provide legal advice prior to the mediation, join you in the mediation room, and review the settlement agreement with you prior to signing. In all cases the lawyers’ job is to act as your legal coach and advisor. In mediation, you are the one making the final decision.
One useful technique mediators often use, and you can request during mediation, is to caucus with your lawyer. In that case, you take time to meet privately with your lawyer and the mediator to have frank discussions concerning legal advice and the risk of potential solutions.
In selecting an attorney to advise you in mediation there are a few things to consider. Naturally you want an attorney that has experience in the matter under mediation, for example, property rights or divorce. Many lawyers also offer mediation services. When they are in the mediator role, they cannot provide legal advice. However, a lawyer representing you that understands mediation can be very helpful in coaching you through the process. Make it clear to your lawyer that you want them to understand and support mediation. You want them be open to negotiation and compromise, not focus on how a judge or jury may rule. Last, be sure to understand how an attorney will charge and their hourly fee. You should also understand this for the mediator, too. Ask for an estimate of the charges.
If you cannot afford a lawyer, you can get free advice from the Maryland Court Self-Help Centers. You can speak to or chat live with lawyers at the Self-Help Center on most weekdays from 8:30 a.m. to 8 p.m. These lawyers cannot represent you in court, but they can give you brief advice. Call 410-260-139, or chat live at mdcourts.gov/selfhelp.
Lawyers are not required for mediation, but in certain circumstances can be very helpful in working through the legalities of complex settlements.
Steve Forrer lives in Easton. He is former Dean and Vice chancellor of University of Maryland Global Campus. He is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediations.
Letters to Editor
Thomas Elliott Hill says
I enjoyed your column today about the role of attorneys in mediation. Far from being redundant they seem like they would have a place especially in cases that involve property.
Thank you for championing the concept of mediation which seems to me to make so much sense. Life isn’t always black and white. The ability of two sides to sit down and thoughtfully consider both sides of an issue should reach a result that is better than the adversarial situations a court room normally uses.