Mediation in Alabama divorce may be either voluntary or mandatory.
It can be a mutual decision by those involved with the goal of reaching an amicable resolution on disputes. It may also be ordered by the court prior to trial, per Ala. Code 6-6-20.
At the Eversole Law Firm, LLC, Birmingham Divorce Lawyer Steven Eversole understands regardless of the circumstances under which mediation takes place, there are benefits to the process.
It can be an excellent way to resolve one or more issues – or perhaps all of them – without incurring the expense or emotional turmoil of a courtroom trial. It also may not be for everyone, and those involved may need to consider and prepare for that possibility as well.
We find it's often advantageous for each individual to be represented by their own divorce attorney during mediation proceedings in order to ensure fairness. However, this is not required.
Ultimately, it is the court that will approve the divorce agreement. The court will not approve an agreement that lacks fairness or properly addresses all relevant elements. That's why having equal legal representation makes sense.
Some circumstances under which voluntary mediation is beneficial and likely to be successful:
- Decision to divorce is mutual
- You do not desire reconciliation
- You wish to remain on good terms with one another
- You don't blame your spouse for the separation/breakdown of the marriage
- Your spouse hasn't lied to you about important matters
- You aren't easily intimidated by your spouse
- Physical violence and/or addiction are not factors in your divorce
- You believe your spouse to be a good parent
Even assuming one or more of these is a factor, mediation could still be beneficial to iron out a few issues of contention. Even if they aren't all resolved, it can be a good place to start.
Mandatory Mediation in Alabama Divorce
While divorcing parties may on their own decide to pursue mediation, Alabama's “Mandatory Mediation Prior to Trial” statute requires the court to order mediation in certain circumstances.
The statute provides that medication is mandatory when:
- When all parties agree. This is the most fruitful environment in which to pursue mediation because each individual is on the same page and willing to work together toward a resolution. This is not to say some disputes won't still arise, but generally, the process can be expected to move quite quickly for those who already agree.
- Upon motion by any party. The statute states the party requesting mediation must burden the cost of it. However, there are many times in which, by the end of the process, these costs are divvied up amongst both sides as part of the agreement reached.
- Upon order of the trial court. Although it's not necessarily required, most family law judges will order individuals to attempt mediation before going to trial. In these situations, it is the trial court that decides allocation of mediation costs.
The statute authorizes sanctions if one individual fails to mediate in accordance with a court order. These can range from compelling certain discovery to ordering that individual to pay costs or finding that person in contempt of court. The exception would be when there is a substantially justified reason for that failure.
It is worth noting Ala. Code 6-6-20(d) bars the court from ordering resolution of issues relating to an order of protection stemming from alleged domestic abuse. This is not to say that once a protection order has been issued, mediation is off the table. However, any mediation that did occur would not involve issues directly related to that issue.
A collaborative divorce is similar to mediation, but there are key differences.
In collaborative divorce, both parties are represented by their own divorce attorney, as opposed to just one mediator overseeing the process. It's also not uncommon in these cases for there to be involvement by professionals who can delve into financial, health and child welfare aspects of the case.
In this process, both parties agree to agree and work to resolve disputes with the help of a team of experts working to do just that.
A collaborative divorce proceeding is likely to cost more than mediation. However, it's often the best option for couples with complex issues of asset division, child custody, child support and spousal support. Plus, it's often cheaper than the cost of litigation, particularly when both parties have disagreements, but can still maintain civility and communication.
If the collaborative effort fails to result in a final agreement, the team is disbanded and the case proceeds to trial.