This is about mediation of divorce issues in Alabama, including when and whether mediation is mandatory, who pays for it, and the required credentials for mediators for divorce issues in Alabama.
- Is mediation mandatory? When?
- Who pays for mediation?
- What are the requirements for who can act as mediator?
Alabama has a statute called “Mandatory Mediation Prior to Trial.” Ala. Code §6-6-20. There’s a copy of the statute itself here if you want to look it over. The statute defines mediation, prescribes conditions under which it is mandatory, sets out procedures to deal with domestic violence, and provides restrictions. In general, the statute is carefully drawn and workable. The exception is the statute’s treatment of domestic violence, which is too broadly worded to be usable in practice.
§6-6-20(b) sets out three conditions under which mediation is mandatory.
- At any time where all parties agree. This doesn’t seem “mandatory” at all. It is actually the most promising environment for mediation.
- Upon motion by any party. The party asking for mediation shall pay the costs of mediation, except attorney fees, unless otherwise agreed. At first blush, this provision seems to inhibit a request for mediation, because it infers that the requesting party will pay the entire costs of mediation. This need not be the case. It is the nature of mediation that it is, in the final analysis, voluntary. There’s no reason why a party could not request mediation and agree to pay for the mediator’s time for a modest initial exploration of interests. Near the end of the initial period, the parties could explore whether further exploration seems warranted. If it does, they could agree on an equitable arrangement for sharing the cost.
- In the event no party requests mediation, the trial court may, on its own motion, order mediation. The trial court may allocate the costs of mediation, except attorney fees, among the parties. If practice in domestic court follows the trend in other courts, some but not all judges will eventually opt for a “standing order” requiring an attempt to mediate before the judge is asked to make a ruling. The provision restricting the trial court from allocating attorney fees in mediation is curious. Trial courts have discretion now to allocate attorney fees; did the legislature intend to reduce this discretion? Apparently so.
Sanctions. §6-6-20(c) authorizes the imposition of sanctions if a party “fails to mediate,” and the statute references ARCP 37. This is an awkward approach, because the sanctions authorized in Rule 37 all go to compelling discovery. Rule 37(b)(2), however, does permit the trial court to impose “an order treating as contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.” The same provision also states that “the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.”
Mediation of domestic violence issues. §6-6-20(d) prohibits the court from ordering mediation “for resolution of the issues in a petition for an order for protection” under the Protection from Abuse Act or any other authority. Quite properly, this provision precludes mediating domestic violence occurred or what whether procedures must be implemented to protect the victim from further abuse. It is important to note what the provision does the court can’t order mediation of say, however. It does not say that the court can’t order mediation of any issues between the parties once a protective order has been requested. To the contrary, the court could easily rule on the petition for a protective order and then order mediation to resolve the substantive issues of the divorce or other proceeding.
If the mediation is voluntary, you and your spouse simply agree on who will pay what for it. If one party requests mandatory mediation, that party will pay for it. If the judge orders mediation, the judge can decide who is to pay for it. Most mediators charge by the hour. Most lawyers who are accustomed to charging a retainer for divorce are also likely to charge a retainer for mediation. Other professionals who provide mediation rarely charge a retainer. What are the requirements for who can act as mediator? There is no restriction at present in Alabama on who can hold himself or herself out as a divorce mediator. In order to be eligible for court-referred cases, however, the mediator must have completed a 40-hour training regimen similar to that approved by the Academy of Family Mediators. The Alabama Office of Dispute Resolution maintains a list of mediators in each area who have completed the training and other requirements.