Under Alabama law, there are three instances where a court may order mediation during a litigation:
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At any time where all parties agree.
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Upon motion by any party. The party asking for mediation shall pay the costs of mediation, except attorney fees, unless otherwise agreed.
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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.
(Ala. Code § 6-6-20)
When all parties agree or when the court orders mediation without any request from the parties, the "trial court may allocate the costs of mediation, except attorney fees, among the parties." However, if one party requests mediation, "the party asking for mediation shall pay the costs of mediation, except attorney fees, unless otherwise agreed." Trial courts, however, don't always follow the statute. In Culverhouse v. Culverhouse, 295 So. 3d 114, 116 (Ala. Civ. App. 2019), the trial court allocated the cost of mediation to both parties. The Alabama Court of Civil Appeals reversed the decision:
"'"Although a trial court has discretion as to whether to stay the proceedings during the mediation, the trial court has to order mediation upon request of a party." Ex parte Morgan County Comm'n, 6 So. 3d 1145, 1147 (Ala. 2008) (noting that the trial court had no discretion to deny the motion of a party requesting mediation (emphasis added)). "'Section 6-6-20, Ala. Code 1975, allows one party to require a court to order mediation of a dispute, irrespective of the position of any other party to the dispute.'" 6 So. 3d at 1147 (quoting Alabama Civil Court Mediation Rules, Comment to Amendment to Rule 2, Effective June 26, 2002 (emphasis added)). See also Mackey v. Mackey, 799 So. 2d 203, 207 (Ala. Civ. App. 2001) (mediation is mandatory when requested by a party).' Working v. Jefferson Cty. Election Comm'n, 72 So. 3d 18, 21 (Ala. 2011). See also Mackey v. Mackey, 799 So. 2d at 206-07 (same)."
Culverhouse v. Culverhouse, 295 So. 3d 114, 116 (Ala. Civ. App. 2019)
Thus, it is in the best interest of the parties to agree to participate in mediation so that the costs of the mediator, which can be substantial, are allocated among the parties. It is also a good idea to agree up front to share the costs of mediation equally.
