We live in a litigious society. As an attorney, that’s good for business. However, litigation has never been a preferred way to handle conflicts. Sometimes it’s absolutely necessary, others times it’s not. There have been many clients whom I’ve counseled and advised not to litigate. Sometimes the price you pay to file suit far outweighs any benefit, and I’m not talking about only the financial cost. Conflicts within families, churches, and others can lead to severed relationships, particularly if you file suit. I’ve often referred to litigation as the nuclear option.
More than ever before in my legal career, I have people coming to me and asking me about mediation. People are looking for alternative ways to resolve their conflicts, particularly divorces, out of court. I hear from a lot of people that they want to mediate – even before a case is filed. And many want to do so without hiring attorneys. They want to go to one person to help them resolve their issues.
Mediation is a great option for people who plan to divorce, families in conflict over estate issues, churches in turmoil, church members fighting, and other people in conflict but who want (or need) to save money, time, a lot of stress, and relationships. Litigating a divorce can be extremely costly. Also, it can result in a lot of anxiety, anger, resentment, and bitterness. Reaching your own agreement as to how to divide your assets and liabilities, and most importantly custody decisions, is preferred to having a stranger (the judge) make those decisions for you. You spent time creating your family and building your assets, it only makes sense that you be responsible for deciding what happens upon its dissolution. You know what’s best for your family and your future, even if you have to look deep down and past the anger at the other person.
So, what is mediation? Mediation is having a neutral person help resolve your conflict. A mediator can guide you and help come up with creative solutions. Mediating before filing a divorce is a great option for many couples. A contested divorce can cost anywhere from $3,000 to over $30,000 (some cases waaayyy over $30,000). Mediation can be far less expensive than the lower end of contested fee range. I’m of the opinion that if you can resolve your divorce prior to filing, the money you save from not having to hire an attorney to slug it out can be used to help you get back on your feet, take a vacation to decompress, start a college savings fund, or any other thing for you or your children. I’m not opposed to attorneys’ fees (I love them actually!), but I’m sure there are more things you can use $10,000 for.
When you do not have an attorney, you can still mediate your case. This is the option many prefer. You have the right to have your own attorney (and it’s certainly helpful), but it’s not required. I’ve heard from many people that they don’t want to spend money on lawyers, they just want to mediate and use a mediator – pay just one person and resolve their case. In Alabama, if you are pro se (that is, you are representing yourself), a mediator cannot give you legal advice. For instance, mediators are not supposed to say to an unrepresented person, “in my experience this judge does X”. However, mediators can guide you and help you get to creative resolutions. If you reach a resolution in mediation without a lawyer, you can still state your desire to have the agreement looked over by an attorney of your choosing. You can seek legal counsel prior to mediation. There are many attorneys who offer free consults, so you can take advantage of that option and have a good idea of your rights going into the mediation.
If you want to resolve your divorce using a mediator prior to filing divorce, you will need to first contact a mediator. Alabama does not have “certified” mediators, but does have “registered” mediators. I am registered with the Alabama Center for Dispute Resolution and I’ve been specifically trained for divorce and domestic relations (custody, child support, etc) mediations, and I’ve also met the requirements to mediate divorce cases in which domestic violence is an issue.
The process can be a little confusing when you don’t have an attorney representing you, so basically you can expect the mediator will meet with you both – at the same, time, date and location – to begin the process of resolving your conflict. The mediator may place you in separate rooms, but you will both need to be present for the mediation. Additionally, expect the mediation to be finished and the case to be resolved (or not) that day. There may be times that it takes more than a day, but most Alabama divorce mediations are one-day events. If you do not have an attorney, you will be responsible for filing the appropriate paperwork with your county’s Clerk of Court. NOTE: Your divorce is not final until the Judge issues an order, a Final Decree of Divorce that will incorporate your mediated settlement agreement. A mediated agreement does not finalize your divorce, only a Judge can issue a divorce.
Max Lucado wrote, “conflict is inevitable but combat is optional.” Just because you have a conflict in your marriage and have reached the difficult decision to divorce, doesn’t mean you have to go to battle. Pre-divorce mediation is a viable alternative to combat. Same is true if you have a church in conflict, church members in conflict, or your family can’t decide an issue over property or an estate dispute. Mediation can help resolve those issues while striving to keep relationships intact.
(no representation is made that the quality of legal services to be performed are greater than the quality of legal services to be performed by other lawyers)