“Some say he did the impossible!”
The Jere Beasley Report, August 2005
Mediation in Divorce
Birmingham divorce mediation attorneys representing mediation clients living in Homewood, Vestavia, Mountain Brook and the surrounding Birmingham area
With the Alabama court system suffering from a budget crunch and overcrowded dockets over the past decade, it has become more common for domestic relations courts to encourage, and in some cases even require, mediation in a divorce case.
Trial Level Mediation
Mediation is often Ordered by the Court, even without the request of either party. At mediation, a practicing attorney that has experience handling divorce cases is appointed by the Court to hear the parties and their respective cases and disputes. The mediator then attempts to settle the case by giving the mediator’s opinion on what a judge would ultimately do if the case went to trial. While the mediation is not binding on either party, more and more cases are settled through the process of mediation.
Mediation proceeds similar to a trial, but in a less formal atmosphere. In a typical divorce mediation, the mediator will meet with both the parties and their attorneys together to hear about the case, and determine what issues need to be resolved. The parties and their attorneys are then separated and the mediator visits with each separately to get their version of the facts outside the presence of the other party. This is your attorneys opportunity to attempt to persuade the mediator that the Court would likely rule in your favor if the case went to court.
The mediator’s goal is to settle all issues of the divorce, but they will attempt to accomplish this is one issue at a time. For instance, the mediator may ask the wife, “You don’t really want the boat, you don’t even have a boating license. Can we agree to give the husband the boat?” This is the mediator’s attempt to whittle the issues to focus on the real disagreements.
The parties often feel they will only make a concession on one issue if they get what they want on another issue. While the wife doesn’t care about the boat, she may want the household furniture, which is of similar value to the boat. A skillful domestic relations attorney will not allow the mediator to resolve any issue in isolation, but will require resolution on a less contested issue hinge upon satisfactory resolution on an issue the client feels is important.
The major advantage to mediation is the parties have control over the process and the ultimate settlement. Once the case goes to trial before a domestic relations judge, the parties lose control of the outcome and must live with the judge’s final divorce decree, unless the case is appealed.
If one of the parties to the divorce appeals the final divorce decree, it is assigned to the Court of Civil Appeals. Similar to the trial court, the Court of Civil Appeals often orders the parties mediate the issues on appeal in an attempt to settle their differences.
That process is almost identical to mediation at the trial court level, except the mediator no longer focuses on what the trial court may order, because the order has already been issued. Instead, the mediator identifies what error the parties claim the trial court made in entering the final divorce order, and decides whether that decision is likely to be overturned on appeal. Even if the mediator determines reversal of any decision of the trial court is unlikely, mediation may still be acceptable by the parties making additional concessions just to try to end the process and make the divorce final.
If appellate mediation is successful, the final agreement of the parties is sent back to the trial court for final approval. If appellate mediation fails, the Court of Civil Appeals will hear the appeal.
If you are going through a divorce, either on the trial or appellate level, and need a divorce mediation attorney in the Birmingham area, contact the divorce mediation lawyers Jim Parkman and William White at Parkman White, LLP for assistance.