Mediation, Discovery, and the Marital Settlement Agreement

Most people picture a contested divorce as a courtroom. Two lawyers, a judge, somebody on the stand telling the truth at last.

That is not where these cases end. Even after a complaint is filed and your case is formally contested, I still think about ninety-eight percent of them settle before their actual court date. So if you are headed down the contested track, the thing worth understanding is not what a trial looks like. It is what the two processes are that get ninety-eight cases out of a hundred to an agreement without one.

Those two processes are mediation and discovery. One of them is a conversation. The other is paperwork. Between them they do most of the work a trial would otherwise have to do, and how you handle them decides how long this takes and what it costs you.

In Anne Arundel County Circuit Court, treat mediation as something you are going to do, not something you might.

Here is the actual policy: "the policy of the court is that for every case where domestic violence is not an issue, and even in those cases now because the majority of mediation is done by Zoom, so unless the court finds a really good reason, the mediation is going to be required by either the court-ordered mediator or a mediator that the parties agree upon."

Read the shape of that. The policy carves out domestic violence, and then the Zoom point immediately narrows even the carve-out, because a session of neither party has to be in a room to remove the safety objection. What is left is a court that expects you to try, unless you have a good reason.

The practical numbers: that costs usually $200 per visit for each party, and it requires two mediation sessions. Budget for that, because it is not optional and it is not free.

I want you to notice what I did and did not say there. I think mediation is excellent. I did not say it works every time, and the reason is in the second half of that sentence. It depends on matching the parties and what they are going through with the mediator you think has the right personality to get those matters addressed.

That is a real variable, and you have some control over it. Where you and the other party can agree on a mediator instead of taking the court's, your choice there matters more than how people treat it. Two people fighting about a child's medical care and two people fighting about a pension need different mediators, and a session with the wrong one costs you $400 and an afternoon spent confirming you disagree.

Mediation works when your disagreement is about what to do. When the disagreement is about what is true, meaning what somebody earns or what an account actually holds, no mediator can fix that for you. That is what discovery is for.

The requirement behind it is broad. In most cases, whether they are civil or criminal, there is a requirement for the other side to turn over all of the documents that you ask for that they have in their possession. Two tools do most of that work in a family case.

Interrogatories are a set of up to 30 questions that are required to be answered under oath. They are the same thing essentially as someone testifying, just in writing. That is worth sitting with, because people treat written questions as less serious than a witness stand. They are not. They are testimony with a longer deadline.

Then there are requests for production of documents. That is unlimited, as long as the documents are what they call discoverable, which means that discovery of those documents has some likelihood to be part of relevant evidence. No numerical cap at all. The only limit is relevance.

For a Columbia household with two incomes, a house, retirement accounts and sometimes a business stake, discovery is usually what turns a standoff into a case that can actually be settled, because until the numbers are on the table nobody is negotiating. They are guessing.

Discovery does not just inform the two of you. It feeds straight into the mechanism Maryland courts use to push a case toward resolution before a trial starts.

Shortly before the trial date, there is usually what is called a pretrial or a settlement conference. And the very first thing that happens there tells you how the court thinks about all of this. "The first thing the judge, who's the settlement judge, asks is, 'Do you have complete discovery?'"

That is not small talk. The judges want to know that everything the other side has to put together is available to you, and if the discovery is not complete, the pretrial settlement conference will be reset, because the court does not feel that the attorneys are ready to negotiate a settlement unless they have all the information.

So think about what an incomplete discovery file actually costs you. Not a scolding. A reset date, on the docket we discussed in Chapter 1, which is booked months and months out. Slow-walking discovery does not delay the other side. It delays your own case, and it delays it by considerably more than the time you saved.

Once mediation and discovery narrow things down, the marital settlement agreement is the document that ends your case.

Be careful here, because a partial agreement is not most of one. The big thing with an MSA is that it is required to be an A to Z type agreement. An agreement on some issues may have relevance, but it is not going to take the place of the whole agreement until there is a signed and preferably notarized agreement in place. After that agreement is in place, the matter becomes truly uncontested, and the short timeline from the first chapter opens back up even to a case that started out as a fight.

Now, when does it actually take effect? An agreement is effective from the time it is put on the record, because all of the courtrooms and all of the circuit courts in all the counties in Maryland are recorded. Counsel usually has to provide the written order within about two weeks, and the judge will tell you "this order begins today" even before that paper is signed.

But the signature does one specific thing that the record alone does not. The signature of the order is what makes it have the power of potential contempt. That is the enforcement, and contempt means that if there is a violation of the order, you have a way to do something about it.

And here I have to tell you something you may not want to hear. Contempt does not reach as far as it used to. In terms of effectiveness, it is most closely related to either an alimony issue or a child support issue or a counsel fee issue. It used to be available for things like violation of visitation and violation of visitation time. Under "the current sort of legal state in Maryland, I don't think that's worth it at all anymore," after some recent cases.

So if your real worry is that the other parent will not follow the parenting schedule, do not build your plan around contempt. That is not the tool it was, and knowing that now is better than finding out eighteen months from now with a motion already filed.

Is mediation required in an Anne Arundel County divorce?

In practice, yes. The court's policy is that mediation is required for every case where domestic violence is not an issue, and even in those cases now, because most mediation happens over Zoom, unless the court finds a good reason otherwise. It is either a court-ordered mediator or one you and the other party agree on.

What does mediation cost in a Maryland divorce?

It usually runs $200 per visit for each party, and the court requires two sessions. So budget around $400 per person for the process. It is worth spending real thought on who mediates, because the fit between the mediator's personality and what the two of you are going through is what decides whether those sessions accomplish anything.

What is discovery in a Maryland divorce case?

The formal process of getting the information the case turns on. Interrogatories are up to 30 questions answered under oath, which is essentially testimony in writing. Requests for production of documents are unlimited, as long as the material is discoverable, meaning it has some likelihood of being relevant evidence. It matters most where incomes or assets are genuinely disputed.

What has to be in a marital settlement agreement for a case to become uncontested?

Everything. An MSA is required to be an A to Z type agreement, covering the divorce itself, custody, property and counsel fees. A partial agreement may have relevance, but it does not take the place of the whole agreement until there is a signed and preferably notarized document in place. Only then does the case become truly uncontested.

Can a parent be held in contempt for violating a Maryland custody or visitation order?

Contempt is most reliably available now for alimony, child support or counsel fee violations. It used to reach violations of visitation time, but after some recent cases I do not think that is worth it at all anymore. If you are dealing with a parenting-time problem, expect to pursue a modification rather than a contempt finding.

Ninety-eight out of a hundred contested cases end in a document, not a verdict. What decides how fast you get to that document is unglamorous: showing up to mediation with a mediator who fits, and getting your discovery done before a judge has to ask whether it is.

That also closes out the divorce half of this book. But for a great many Anne Arundel and Howard County families, finishing the divorce does not finish the conversation. It just moves it to a number.

That number runs on its own statutory formula, one that leaves a judge far less room than people assume, and working out where it comes from is where the second half of this book begins.