Guide For Attorneys and Parties.
Virtually every contested estate, trust, conservatorship or other matter covered by the Probate Code will be ordered to mediation to give the parties and their lawyers an opportunity to resolve their dispute at an early stage. This Guide is intended to explain the mediation process and to answer frequently asked questions about this process.
II. WHAT IS MEDIATION?
Mediation is a process in which a completely neutral person, called a mediator, tries to help the parties and their lawyers resolve a dispute. There are many ways that disputes can be resolved. For example, if the parties in any lawsuit cannot settle their dispute, ultimately the case will be resolved by the Court after a trial or other hearing. Similarly, in arbitration the parties present their case and a neutral arbitrator makes a decision resolving the dispute. In those situations, the result is imposed on the parties through the decision of the judge or arbitrator.Mediation is quite different from these other ways of resolving disputes. First, in mediation the mediator does not make any decision and does not impose a result on anyone. Instead, the mediator tries to help the parties and their lawyers resolve the dispute through an agreement. In other words, the mediator does not decide who "wins" the dispute - rather, the mediator tries to help bring about a settlement which is agreed to by all involved. If the parties cannot reach an agreement, the mediation ends and the case proceeds towards trial. Thus, the mediator cannot force anyone to resolve a dispute, but the matter may be settled only if all parties (and their lawyers) agree to a binding settlement reached during mediation.
III. WHY DOES THE PROBATE COURT ORDER MEDIATION?
Mediation has become a popular way to try to resolve all types of lawsuits and is uniquely appropriate for the contested disputes before the Probate Court, because the parties often are related or at least know each other and because there are often numerous emotions and differences of opinion about underlying facts. In mediation, everyone has the chance to have their say, often directly to the other parties and in a setting in which people may speak freely in an effort to understand the other parties' views in trying to resolve the matter.The overwhelming majority of contested matters in the Probate Court settle before trial, a fact which is also true for other civil lawsuits. The mediation program has proved to be very successful in resolving contested matters, often at an early stage before the parties incur substantial expenses and devote substantial time and energy to the dispute.
IV. HOW IS A MEDIATOR CHOSEN?
Anyone who is acceptable to all parties and their lawyers may serve as a mediator in these types of disputes. The Probate Court also has a Probate Mediation Panel, which is a list of people, mostly attorneys and retired judges, who have met certain requirements in experience and training and have agreed to serve as mediators if asked. Usually, the parties and their lawyers review the names on the Probate Mediation Panel and select a mediator, who is normally paid for his/her services at a set hourly rate, which may be waived based on the nature of the dispute. Ultimately, if the parties cannot agree on a mediator, the Court will assign one from the panel.
V. HOW DOES A MEDIATION WORK?
Once a mediator is selected, s/he will normally communicate with counsel for all of the parties (or with the parties directly if some or all of them do not have lawyers) about the manner in which s/he conducts mediations. Mediators may have very different procedures that take place before the actual mediation. For example, some mediators require the parties or their counsel to sign a mediation agreement and to provide a fee deposit. Also, some mediators will request a short statement from each party about the dispute, perhaps together with key documents or other information.Most mediations take place at the mediator's office, and are usually scheduled for one-half or a full day, although the mediation may be continued if progress is made but no resolution is reached at the end of the first session. Usually, the mediator starts by meeting together with all parties and their lawyers to explain the mediation and to discuss the dispute in general terms.Mediators have many different approaches, but in most mediations the parties and their lawyers will at times all be together with the mediator, and at other times will meet privately with the mediator while the other parties and their lawyers are in another room. These private sessions, often referred to as "caucus" sessions, are completely confidential and the mediator will not tell the other parties what has been said privately by others unless s/he has given permission to do so. Often, the mediator may shuttle back and forth between different rooms in trying to help bring the parties together towards a settlement. Most mediators insist that all parties be present at the mediation, although in special cases (such as one involving an out-of-state resident) a mediator may agree to have one or more parties participate by telephone.In discussing the dispute with the different parties and their lawyers, the mediator tries to find common ground on which the parties agree. As the parties are able to agree on more and more points, the mediator tries to help them reach a complete resolution of all disputes between them.If a resolution is reached, it is usually written up in some form and signed by the parties and their lawyers. If possible, this resolution may be written and signed at the mediation, although sometimes it is necessary to finish the documentation later. After such a formal resolution takes place, the dispute is over.
VI. DO I HAVE TO PARTICIPATE IN MEDIATION?
Yes. Litigation is very expensive and time-consuming process, and because the odds are extremely high that your dispute will be resolved before trial anyway, the Probate court uses mediation to try to resolve these disputes sooner rather than later. Many lawyers and parties have been quite surprised that their matters have been resolved through mediation, when they truly believed that mediation would be a waste of time and money, because the dispute could not possibly be settled.
VII. ARE THERE ANY LAWS OR RULES THAT GOVERN THIS PROCESS?
Yes. The Los Angeles County Superior Court Rules re: Probate Mediation are contained in the Court's Local Rules beginning at Rule 10.200. In addition, state laws concerning confidentiality and other rules about mediation generally are contained in the California Evidence Code, beginning at Section 1115.One important rule about mediation is that everything said at the mediation by the mediator, the parties and their counsel is completely confidential and cannot be used in the litigation if the case proceeds towards trial. In this way, the parties and their lawyers may speak freely about their opinions regarding the dispute, in an effort to try to resolve it and without being afraid that participating in the mediation will somehow harm their position if the matter does not settle.