Alternative Dispute Resolution (ADR) is a term that encompasses procedures in which parties use the services of a neutral party to avoid litigation in public court. In Alabama, ADR may involve mediation, arbitration, and private judging. Spouses may use ADR in a domestic relations case that covers legal separation, divorce, and/or matters regarding children. Child related proceedings include child custody, visitation, and support.
Arbitration is a procedure that involves an arbitrator making a binding decision or nonbinding recommendation on the matter. Typically both parties choose the arbitrator.
Mediation involves a mediator engaging both parties in a dispute talk about the issue at hand. The parties discuss the conflict and possible resolutions. A mediator manages the mediation session but does not make a decision on the issue. The parties determine the terms, conditions, and timeframes for their resolution. The mediator writes up the agreement with the help of the parties. Then all parties sign the agreement.
Parties who engage in mediation may have their own divorce attorneys in Montgomery. The point of having attorneys is to help inform parties of their rights and responsibilities.
A mediator may tackle the following topics:
- the division of assets and liabilities, including alimony, property, and businesses
- parenting responsibilities
- ways to communicate and solve problems
- formation of a legal separation agreement and/or marital settlement agreement
Private judging involves former or retired judges serving as private judges in certain district and circuit court cases. In a private judging procedure, the court is not open to the public. Private judging is not free. The parties involved compensate the judge.
A judge who wants to serve as a private must:
- have been but not actively be serving as the judge of a district or circuit court
- have served as a judge for at least six consecutive years
- be admitted to the practice of law in Alabama
- be an active member in good standing of the Alabama Bar Association and
- be a resident of Alabama.
The case that the private judge presides over must be one over which the former judge would have had subject matter and monetary jurisdiction. For example, a private judge who served as a criminal court judge before retirement could not serve as a judge in a domestic relations (family law) case. The exception is if the private judge also served as a domestic relations judge prior to serving as a criminal court judge.
Parties to such an action must select the judge. Then they must file a written petition requesting a private judge and naming the judge with the circuit clerk of the court in which the matter has been filed. The private judge must sign a form in which they consent to the appointment. The parties are required to file the petition at the same time or after the action has been filed, but before the beginning of trial.
A private judge conducts a trial without a jury. The judge has the same powers as the judge of a circuit court. All proceedings are on record and are filed with the clerk of the circuit court. They are made available to the public. The Alabama Rules of Civil Procedure apply. A party who wants to appeal an action does so in the same way as they would if the case was heard in public court. A private judge may hear a case at any time or place in Alabama.
Since the COVID-19 pandemic began, parties have begun engaging in different types of ADR remotely over Zoom. Parties may use digital tools like virtual meeting spaces to assist with communication. For example, a mediator may hold a pre-mediation conference in a breakout room with the parties’ attorneys. The mediator would then meet with the parties in the main Zoom meeting.