When is Mediation Ordered in a Divorce?

Mediation is a popular alternative to settling disputes between parties during a contested divorce. In mediation, a neutral third party discusses the case and terms with both spouses and their attorneys to help them come to a compromise agreement on how to divide the couple’s assets as well as parental responsibilities (if applicable). Things like taxes and retirement accounts can also be settled in mediation. The meditator does not work for either party and must be a license attorney in Alabama. While couples can always opt for mediation in Alabama, there are some situations where it can be ordered by the court per state law.

Alabama has a statute called, “Mandatory Mediation Prior to Trial.” Ala. Code §6-6-20. This statute lists the following three conditions which would make mediation mandatory: 1) When all parties agree (this can make mediation much easier); 2) When any party makes a motion with the court requesting mediation; and 3) If no party requests mediation, the court may order mediation at their discretion. Regarding #2, the party that requests mediation must pay for the cost of it, but not the other party’s attorney’s fees. If the court assigns mediation, as in #3, the court may allocate the costs of mediation (excluding attorney’s fees) among the parties.

The mediator’s decision is not binding. That is to say, it is not legally enforceable. It could perhaps be considered more of a formal recommendation to the court based on what the mediator discussed with both parties.  The mediator submits the final agreement of divorce mediation for the court’s approval. The court can take the recommendations from the mediator’s report and enter those terms in the divorce decree, or the court can set aside the report and enter its own ruling. However, typically the court adopts the recommendations of the mediator’s final agreement report as long as it doesn’t lack basic fairness and addresses all of the elements required in a divorce agreement. Mediation is popular with most courts because when parties work out their differences in mediation that is less time the parties will spend in court, helping to cut down on the already over-booked caseloads in the Alabama court system.

Because most courts in Alabama have a large caseload and are stretched by budget cuts, many judges require mediation in all contested divorces before they will even hear the case. Circuit judges (who have jurisdiction over divorce cases in Alabama) have discretion on whether or not to assign mediation – even if it’s not required under the Alabama statute referenced above. It just depends on which county you file for divorce in and the judge’s policy. You could call the Circuit Clerk’s office in the county where you plan to file for divorce and ask if the judge requires mediation for all contested divorces.

Mediation typically takes less time to come to a resolution than for a contested divorce to be decided by the courts. It is also a less formal atmosphere, so it could be less intimidating for the parties. Maybe you and your spouse only disagree on one or a couple of issues. Mediation allows you to only focus on the issues you disagree on in order to work on coming to a compromise on those specific issues. You can still hire an attorney for the mediation process. While only one divorce attorney is required to be present at mediation, both spouses can hire their own attorneys that can be there to assist their client during the process.

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