Select Alabama Mediation Cases


Select

Alabama is developing a body of case law where an issue on appeal arises from a mediation. Comments following case summaries are the authors, not necessarily the holdings of the courts.
Disclaimer:  Case summaries are the product of the various editors’ analysis.  Please review the whole case and not just the summary if you intend to use it.

PDF File Format Things We Know About Mediation In Alabama From Cases That Have Ended Up In The Appellate Courts, January 2017 - This document highlights key issues and references cases in the document below. See full text below.

PDF File Format Alabama Mediation Cases, January 2017 - A synopsis and analysis of cases of interest to Alabama Neutrals.

~

Things We Know About Mediation in Alabama From Cases That Have Ended Up in the Appellate Courts

Please refer to the digest of cases linked above for complete citations. Page numbers for digest are provided.   * Denotes divorce/family cases

1. *An order to mediation is not a final appealable judgment. Matters have not been adjudicated.
McNeill v. McNeill
 Pg. 7

2. There is a firewall between the appellate mediation office and the appellate courts.  The court only knows that the case has gone to mediation (not about the mediation) when it is returned to the court from the mediation docket if the case does not settle.  Confidentiality is a top priority. 
Southland Bank     Pg. 2

3. If one party requests mediation the court must order it pursuant to §6-6-20 (b) Code of Alabama 1975.   
Ex Parte Morgan County Commission;   Working v. Jefferson County Election Commission   Both Pg. 3;  * Mackey v. Mackey   Pg. 9

4. You may abandon a request for mediation under §6-6-20 by how you proceed in the run up to trial.    
Waddell v. Colbert County-Northwest Alabama Healthcare Authority    Pg. 14

5. Releases are important, as is their content.  Lawyers should bring them. Mediators should remind them to bring them.   
Walton v. Beverly Enterprises-Alabama, Inc.
    Pg. 5

6. Negotiate to specific, measurable standards.  Leave nothing to guess work.    
James v. City of Russellville
   Pg. 5

7. *Visitation plans in mediated agreements are subject to the court finding, after a hearing, that they are in the best interest of the child. 
S.A.N. v. S.E.N
.  Pg. 6

8. Rule 11 of the Alabama Civil Court Mediation Rules, Confidentiality, is not intended to prevent the injured party from proving fraud or mistake.  
Dissent
in Cain v. Saunders   Pg. 10

9. If there is fraud in procuring a mediated agreement (in this case, by not complying with a court-ordered discovery order) the injured party may be entitled to rescind the agreement.  Elements necessary to establish that a mediated agreement is procured by fraud are set forth by the court. 
Billy Barnes Enterprises v. Williams   Pg. 8

10. The party who seeks to set aside a mediated agreement on grounds of fraud has the burden of proof.   In this case, proof that the other party had made some representation of material fact that reasonably induced the movant to enter into the mediated agreement was not present. 
Berry v. H.M. Michael,  Inc.
    Pg. 6

11. Fraud is a defense to specific performance of the mediated agreement.   
Harlan Home Builders, Inc. v. Hayslip
Pg. 10

12. If you accuse a party of breaching a mediated agreement, you need evidence that they have done so.  Here, you can read what is not sufficient enough for a breach.  
Williams v. Jackson
  Pg. 14

13. *When filing a motion to set aside a mediated agreement, a party may allege that he or she was not physically or mentally well on the day of mediation. 
Daniels v. Daniels
  p. 7

14. Don’t forget liens when drafting a mediated agreement. 
Board of Trustees of the University of Alabama v. American resources Insurance Company, Inc
.      Pg. 7

15. Documents prepared for use in mediation should be labeled as such so they remain confidential under Rule 11 of the Alabama Civil Court Mediation Rules. 
Alabama Department of Transportation v. Land Energy, Ltd.
   Pg. 8

16. A mediated agreement that violates a statute may not be upheld. 
Purdue v. Green     Pg. 12-13

17. When a nursing home resident is not competent when he or she is admitted, and the signature on the dispute resolution agreement (DRA) is a family member or next friend, then the resident and signer are not bound by the med/arb clause (apparent authority to the contrary), and neither is a third party legal representative, when asserting a malpractice claim against the nursing home.  An incompetent is unable to empower an agent.  The Court said that while the holder of a durable power of attorney may have been able to bind the resident to a DRA at time of admission, a family member or next of friend could not.
SSC Montgomery Cedar Crest v. Bolding
   Pg. 14 

18. *A court cannot rewrite the parties’ mediation agreement to craft relief if the mediated -for remedy is not available after the mediation.  The court can vacate the prior judgment and allow parties to remediate, set the case for trial, or other appropriate relief. 
Leverett v. Leverett
   Pg. 13

19. The fine for sanctions for not complying with a court’s order to mediate may not take the form of workers’ compensation benefits, but should be a separate award altogether.
Dollar Tree Stores, Inc. v. Ates
  Pg. 15

20. *On mandamus, parties were prohibited from compelling mediator testimony regarding any aspect of the mediation when self-represented wife in divorce action sought to set aside a mediated agreement accusing mediator of giving legal advice and of coercion.
Ex parte Sheila Stone Schoen  September 5, 2013, Alabama Court of Civil Appeals.  Pg. 15

21. *If you don’t object to a judge questioning you regarding what went on in mediation you will be agreeing to the disclosure, and this is an exception to confidentiality under Rule 11(b)(1) of the Alabama Civil Court Mediation Rules, and not a violation of 11(c). If you want pendent lite alimony arrearages (interlocutory) to be paid post final divorce, get them in the mediation agreement or file a motion for contempt before the mediation. 
Johnson v. Johnson   Pg. 1

___
Please refer to the digest of cases linked above for complete citations. Page numbers for digest are provided.

01/17 JMK

Back to Top

 

ADR Legislation Home

Select Cases

Alabama Law

Alabama Ethics Opinions of the Alabama Supreme Court Commission on Dispute Resolution

Alabama AG Opinion

Alabama Executive Orders

  • Executive Order 7, Expansion of the Workplace Mediation Pilot Program, March 20, 2003
  • Executive Order 50, State Agency ADR Task Force Appointed: Executive Order 50, September 16, 1998
  • Executive Order 42, Alabama Government Agencies Encouraged to Use Mediation, March 18, 1998

 


Private Judges

The Alabama Private Judge Act authorized the appointment of former or retired judges to serve as private judges in certain district and circuit court cases. - More -

Arbitrators

Arbitration agreements, are often found in pre-printed consumer contracts. They require parties to the contract to resolve disputes in binding arbitration, rather than in court before a judge and/or jury. - More -

Mediators

Mediation is a confidential, informal process during which an impartial third party, the mediator, assists disputing parties in reaching a mutually acceptable agreement regarding their dispute.

  • General Mediation offers a path to resolving many disputes. - More -
  • Family Mediation offers free divorce and family mediation for parenting, divorce and post-divorce issues. - More -
  • Forclosure Prevention and Mortgage Modification Mediation offers specially-trained mediators to assist Alabama citizens with foreclosure and mortgage problems by mediating between the homeowner and the mortgage holder. - More -

 


Let's Get Social!

Did you know we're on Facebook?
Visit our page at facebook.com/alabamaadr and Like us to keep up with the latest news and happenings at the Alabama Center For Dispute Resolution!

We're also on Twitter!
While we don't have a lot of "fast-breaking news," we also have a Twitter account to keep you up on the latest. Follow us @AlabamaADR at twitter.com/alabamaadr

And we have a YouTube channel!
It contains videos and links to videos related to our favorite topics... mediation, negotiation, arbitration, restorative justice. Visit Alabama Dispute Resolution Center on YouTube.


WHO WE ARE

Alabama CDR is the state office of dispute resolution. At the Center, we work with the courts, the Alabama State Bar, state agencies, schools, community mediation initiatives, and businesses to promote early and peaceful resolution of disputes. We are the administrative arm of the Alabama Supreme Court Commission on Dispute Resolution.

GET IN TOUCH

Alabama Center for Dispute Resolution
PO Box 5042, Montgomery, Alabama 36103-5042
assistant@alabamaadrfor adr.org
(334) 356-3802

SIGN UP
for our quarterly News for Alabama Neutrals

Loading
Share:

 
Admin