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Birmingham AL Collaborative Divorce Law Blog

Monday, February 6, 2017

Assessing Your Options: Divorce Mediation Could A Third-Party Negotiator Make Your Divorce Easier?

Divorce is not one size fits all. Although the Hollywood version of divorce often depicts couples fighting it out before a judge, 90% of all divorces are settled out of court. A variety of factors — such as whether or not minor children are involved, alimony is being disputed, or when there are hi-net worth assets — may influence the way you go about divorce.  Depending upon the situation, mediation is one means of resolving issues that divorcing couples may find useful.

Mediation is the use of a qualified, neutral party — not your attorney or your spouse’s attorney — to moderate negotiation of the terms of your divorce agreement. In other words, a trained mediator is a facilitator for compromise. Although a mediator may be an attorney, when functioning in this capacity, they cannot provide legal advice.

Studies show that even when couples are feuding, mediation can be successful. According to a survey conducted by Mediation Services of Eastern Iowa, in cases where couples initially felt negotiation would be impossible, 71% reached agreement on some or all of their issues after mediation.[1] Research also indicates that undergoing mediation “is less likely to have a negative psychological impact on the divorcing couple” than going through litigation.[2]

Mediation may be most successful when you meet the following criteria:

  • You and your spouse both desire to reach an agreement out of court and/or to avoid the expense of trial.
  • You and your spouse are equally knowledgeable about the family finances and about the assets of the marriage.
  • Although you and your spouse may not be able to reach a compromise on your own, you are both reasonable and neither of you is seeking revenge.

How It Works

Mediation is a confidential process.  The mediator will require the parties’ to sign a mediation agreement in which the rules of confidentiality in the process are outlined. Most private mediators charge an hourly rate for their services.

Parties are not required to sit at the same table to mediate a case. Caucus style mediation in which the mediator takes turns talking to one party at a time are most common in Birmingham. Mediation can also be done with each party having a lawyer present to advise them. 

Mediation can occur with or without the parties having their own lawyers.  When parties mediate without lawyers, typically the process unfolds through a series of meetings between the mediator and parties together, or in private conversations between the mediator and each party. The duration and extent of each meeting will vary depending on the issues and the parties’ needs.  Some people make decisions quickly, others may need more time. Once a resolution is achieved, the mediator drafts a document that reflects the terms of the agreement, which can then be provided to the parties’ lawyers to be formally prepared for filing with the court.

When mediation occurs with lawyers present representing each party, the process is most often conducted in one long session during which the mediator will meet separately with each party and his/her lawyer.

State Mediation Requirements

In the state of Alabama, if one party makes a formal request for mediation with the court, the parties will be ordered to submit to private mediation, according to the Alabama Mandatory Mediation Act (1996). A family court judge might also require mediation as long as there is no allegation of domestic violence.[3]

Some counties in Alabama require parties to attempt mediation, either through a court facilitated mediation program or via a private mediation process. Court facilitated mediation is when the court brings in volunteer mediators to assist parties in reaching agreement. The upside of this is that parties with limited means can have the assistance of free mediators. The downside, however, is that there are often many cases set for mediation on the same day, only a few mediators, and there is very little private or quiet space in which to formulate or consider settlement options. 

Private mediation is when the parties are required to pay a mediator to work with them and while this is more expensive, it does provide the parties with the undivided attention of a mediator in an environment designed to facilitate privacy and sufficient time to consider options for settlement. 

For those who need financial assistance, the Parents are Forever Family Mediation Program was created as a collaborative effort of the Supreme Court of Alabama and the Alabama Center for Dispute Resolution to provide free mediation services for divorcing parents with a family income of less than $60K.[4] Judges may order or refer parties into this program.

The Alabama State Court Mediator Roster is available at www.alabamaadr.org and www.alabamamediators.org


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