Jeffrey Galvin of Downey Brand has this article, published in JD Supra, discussing the recent California appellate decision in Breslin v. Breslin, holding “that a California probate judge may order the private mediation of trust disputes and then disallow the objections of any nonparticipating parties to a settlement agreement reached in mediation.”
According to the appellate decision, even though the probate rules did not explicitly empower the court to order mediation, the court was so authorized by a rule which provided that “[t]he court in its discretion may make any orders and take any other action necessary or proper to dispose of the matters presented by the petition.” As the appellate court continued, the probate court “made participation in mediation a prerequisite to an evidentiary hearing. By failing to participate in the mediation, the Pacific parties waived their right to an evidentiary hearing. It follows that the Pacific parties were not entitled to a determination of factual issues…”
Attorney Galvin notes that the decision, especially if it survives subsequent appellate challenges, has the potential to change the judicial landscape in California: “Stepping back, the big question here is whether California courts, in trust disputes and more broadly in civil cases, can compel private mediation as a prerequisite to conducting a trial. While courts can and often do order ‘mandatory settlement conferences’ with a judicial officer in advance of trial, many practitioners take the view that courts generally cannot (and should not) force parties to go to private mediation with a paid mediator.”
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