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Introduction
For some disputes, trials will be the only means, but for many claims, trials by the adversary contest must in time go the way of the ancient trial by battle and blood. Our system is
too costly, too painful, too destructive, too inefficient for a truly civilized people.
- Chief Justice Warren E. Burger.
The use of alternative dispute resolution (ADR) has been growing in Utah.2 Recently, there has been a concerted effort to utilize mediation in the often-complicated area of probate conflicts. The Third District Court has adopted a pilot program aimed at utilizing mediation to resolve probate conflicts without litigation.
This article will explore the genesis, development, and future of probate mediation in Utah. The primary focus is on the Third District Court's pilot ADR program for probate disputes;
however, other districts are also utilizing ADR, and the research behind this article was done with an eye towards the future spread of the probate mediation program to other judicial
districts.
Where Did it Come From?
History
The use of alternative dispute resolution in inheritance matters has a surprisingly early history in the United States. For example, George Washington's will contained
what was essentially an ADR clause for settling any disputes arising from the administration of his estate:
[T]hat all disputes (if unhappily they should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chose by the
disputants each having the choice of one, and the third by those two - which three men thus chose shall, unfettered by law or legal constructions, declare their sense of the
Testator's intention, and such decision is, to all intents and purposes, to be as binding on the parties as if it had been given in the Supreme Court of the United States.3
Despite Washington's early example, it has only been relatively recently that the use of ADR has taken hold in court systems. In Utah, the courts did not seriously begin to study the use
of ADR in the court system until 1986. In December 1986, the Utah Judicial Council created an ADR task force to study the need or desirability of establishing ADR programs for the state
courts.4 The taskforce reviewed court workloads and costs, benefits to litigants, and existing court and state ADR programs. It determined that the development of an ADR program would be beneficial.5
Since that time, legislation and judicial rules have been enacted to promote the use of ADR through many aspects of the court system. Mediation is used widely in the area of divorce, and
nine formal programs have been established by the Office of Alternative Dispute Resolution.6
In 1991 in the Utah Legislature enacted the Alternative Dispute Resolution Act.7 In 1994 the Legislature repealed the act and enacted new legislation under the same name, which was amended in 1997 and 2000.8
Statute and rules work together to form a framework for ADR in the courts. The legislature's purpose was to:
[O]ffer an alternative or supplement to the formal processes associated with a court trial and to promote the efficient and effective operation of the courts of this state by
authorizing and encouraging the use of alternative methods of dispute resolution to secure the just, speedy, and inexpensive determination of civil actions filed in the courts of this
state.9
The statute authorizes the Judicial Council to "establish experimental and permanent ADR programs administered by the Administrative Office of the Courts under the supervision of the
director of Dispute Resolution Programs"10 as limited by the Act,11 and the Council may limit application of its rules to particular judicial districts.12
The Judicial Council established UT ST J Admin Rule 4-510 which applies to the Second, Third, and Fourth Judicial Districts.13 It also enacted the Utah Rules of Court-Annexed Alternative Dispute Resolution that apply to all court-annexed ADR proceedings in the state, and which includes a code of ethics for ADR providers. However, Rule 4-510 has not been strictly adhered to, and the need was seen for further structure when the Probate ADR Pilot program was developed.14 Therefore, Probate ADR in the Third District is further governed by rules adopted by the Third District judges who are ultimately responsible for the program.15
Many practitioners seem to have the mistaken impression that mediation has been made mandatory in many types of civil cases, including probate. It is true that contested probate cases are
automatically referred to mediation; however, automatic referral does not equate to mandatory mediation.
The wording of the ADR statute is silent on whether ADR proceedings can be made mandatory. However, it is implied by 78-31b-3 and 78-31b-5(1),(2),(3)(e), which state that the purpose is to
provide ADR proceedings as an "alternative or supplement to formal processes associated with a court trial."16 Further, "the Judicial Council may establish experimental and permanent ADR programs" with rules based upon the purposes of the act and which ensure "that no party or its attorney is prejudiced for electing, in good faith not to participate in an optional ADR procedure."17
The following judicial rules explicitly provide opt out provisions: Code of Judicial Administration Rule 4-510(6)(A), Utah Rules of Court-Annexed Alternative Dispute Resolution (URCADR)
Rule 101(g), and the Probate Pilot Program rules. Within the Probate ADR Pilot Program, parties may make a motion to withdraw from mediation after watching an ADR videotape provided by
the courts.
The legislature further recognized that "preservation of the confidentiality of ADR procedures will significantly aid the successful resolution of civil actions in a just, speedy, and
inexpensive manner."18 The Alternative Dispute Resolution Act provides:
1.Everything is confidential unless the parties agree otherwise.19
2.Evidence regarding the fact, conduct, or result of an ADR proceeding is not subject to discovery or admissible at trial.20
3.No information obtained during an ADR proceeding may be subject to discovery or admissible in trial unless discovered from an independent source.21
4.With limited exceptions, the ADR provider may not disclose information about the proceeding to anyone outside the proceeding, including judges.22
These statutory conditions are emphasized and elaborated upon in URCADR Rule 103. UCJA Rule 4-510 further provides that "No ADR provider may be required to testify as to any aspect of
an ADR proceeding except as to any claim of violation of URCADR Rule 10423 which raises a substantial question as to the impartiality of the ADR provider and the conduct of the ADR proceeding involved."
Vision/Genesis of the Third District Pilot Program.
Having seen the success of mediation in family disputes, and understanding that probate cases are just "family cases in a
nutshell,"24 members of the court community began contemplating its use in the area of probate. The ADR office felt it was time to add another program, judges were talking to divorce commissioners, and there was discussion among the Judicial Council ADR Committee; in short, the parties just felt the time was right time to bring everyone together.25
District Court Judge William Bohling, chair of the Judicial Council ADR Committee is credited with being the driving force behind the establishment of the program.26 Judge Bohling does not remember who first suggested probate as an area for mediation, but says, "It was evident to all of us [that it would be] an appropriate area for mediation."27
The ADR committee formed an ad hoc committee to develop a pilot program for ADR in probate.28 Earl Tanner, Jr. and other attorneys jumped right in.29 Mr. Tanner in particular is credited with being a very active participant in the process.30 Other members of the committee included Judge Bohling as chair, Probate Clerk Hal Reuckert, Kathy Elton, Director of Alternative Dispute Resolution, Karin Hobbs, former Chief Appellate Mediator for the Utah Court of Appeals, and Commissioner Tom Arnett. Commissioner Arnett lent a great deal of expertise to the process and was very positive about the impact mediation had had on divorce disputes.31
The parties combined their expertise from research and experience in other areas to formulate a probate ADR procedure.32 It was a collaborative effort of which the ADR Committee is proud.33
During the committee meetings, attorneys brought up practical concerns such as how to deal with clients, the structure of process, and time frames.34 The committee spent a lot of time discussing how to deal with the requirements of URCP Rule 26.35 Everyone believed in the potential for probate cases to settle, but the question was how much to push and when.36 There was a sharp divide over who should conduct the mediation sessions. Some lawyers were adamant that the mediator should be a lawyer. There was a discussion of co-mediation, where there would be a substantive expert and a process expert. In fact, the process itself "started to mimic a mediation."37 Eventually, the committee decided to have a roster of trained mediators, lawyer and non-lawyer alike, and let the parties choose.38
Added to this mix was the expertise and experience of the mediators. Of Kathy Elton, Director of Alternative Dispute Resolution, and Karin Hobbs, Chief Appellate Mediator, Judge Bohling
says:
Well, Karin and Kathy, they have been instrumental in this program. They're terrific. They've both put effort into it and [lent] their interest and wisdom, and I have really
appreciated what they've done. They're to be commended for the wonderful work in getting this put into place.39
Attorney Laurie Hart, another member of the committee, sums up the decision to establish a pilot program this way, "Most probate litigation does not really turn on legal arguments;
they are just family squabbles."40
Where is it Now?
Current Process/Procedures.
The process is a simple one. All contested probate matters are referred to mediation. A packet is provided to parties to a probate dispute explaining
the procedure. The basic provisions are as follows:41
1. All probate disputes that are not resolved by the probate judge are automatically referred to the ADR program.
2. The default form of ADR is mediation, but arbitration may be substituted.
3. ADR must commence within 30 days and be completed within 60 days of referral.
4. All other procedural timelines, including URCP Rule 26, are stayed during this 60-day period unless otherwise changed by the court.42
5. The parties have the responsibility for selecting the mediator or arbitrator, but a roster is maintained by the court to assist the parties in this.
6. The earliest petitioner in the matter referred to mediation reports the results.
7. Parties may opt out of ADR by filing a motion to withdraw and by viewing an ADR videotape.
Current Progress.
Perceptions of the Program
Judicial
The value of alternative dispute resolution has been recognized by the United States Supreme Court for some time. In 1985 the Los
Angeles Times quoted Chief Justice Warren Burger as saying:
We must move toward taking a large volume of private conflicts out of the courts and into the channels of arbitration, mediation and conciliation.43
More recently, Justice Sandra Day O'Conner, speaking at the dedication of a new community dispute resolution center said:
In the context of cases in the courts, alternatives to full adjudication are numerous and accessible. For example, litigants have the option of seeking resolution through neutral
evaluation, negotiation, arbitration, mediation, or even summary jury trials. This range of alternative dispute resolution options have benefited the legal system not only relieving
some congestion in the dockets of courts, but also by providing an effective, less costly, and often more satisfying means to resolve the disputes.44
Third District Judge William Bohling seems to have a similar vision. He describes himself as "fairly enthusiastic about ADR" and believes that it "does all the right
things."45 Regarding the Probate Mediation Program he stated:
Well, I think you've really captured the real benefit: it maintains the family relationships and allows a peaceful resolution. But, I guess the other side is that it is an economic
benefit. The horror of a lot of these disputed estates is that by the time the parties finish the dispute, the resources of the estate, the assets, have been expended on legal fees
and there is nothing left. [T]his is a way to avoid that. To a person that doesn't have any interest at all in mediation, ...economic reasons alone justif[y] it. . . .
I think it is a pretty good program. I don't have any criticism at this point. It seems to be working. I'm impressed by the probate bar. They have really come through in this area. And
I think by their nature they're not litigators - they're more problem solvers - and it has been in part because of their motivations and . . . their temperament that I think that this
program has been so successful.46
Attorney
In the summer of 2001, members of the Estate Planning Section responded to a survey regarding probate mediation. Many of those who responded provided comments about
mediation. The comments were both positive and negative. Those comments are summarized in Table 1.
Laurie Hart, who was a member of the ad hoc committee that established the pilot program, thought implementation of a probate mediation program was "a great idea." She felt that
formal mediation some time during the process would make a case more likely to settle.47
Ms. Hart tells of a case that had gone through two years of litigation. She thought mediation would be a good idea. She knew that if the parties did not settle it would be a long and ugly
trial. Ms. Hart felt that if they could just mediate and get the attorneys out of the way the parties could resolve it. However, the opposing counsel felt there was no way it would
settle. Eventually though, with the blessing of the judge over the case, the parties went to mediation. The parties were related only by marriage, and Ms. Hart was quick to emphasize that
there was "no relationship to be saved." However, much to the surprise of opposing counsel, the parties reached a settlement. Of the experience, Ms. Hart says, "Would I do
it again? In a heartbeat."
Mediator
As to be expected, mediators are very enthusiastic about mediation. The pervading attitude was that people should at least try mediation. "A good mediator can get
people past their attitudes," says Karin Hobbs, former Chief Appellate Mediator. Kathy Elton, Director of Alternative Dispute Resolution, adds that parties will have "at least
more of an understanding of the issues in the case."48
Probate mediation draws on family strength.49 Hobbs says, "You can't put a dollar value on a relationship. ... The value of it cannot be underestimated."50 "Family is family; you can't just quit doing business with a family member," says Elton.51 There are emotional interests that cannot be dealt with in litigation.52 Mediation allows parties to get to underlying, often non-legal, issues that are the key to the resolution of the case.53
The two mediators were quick to list the benefits, but the only weakness they could think of was that the program is new and people do not know how to utilize it to help them.54
Michelle Royball, ADR Administrator for the US District Court - District of Utah, who attended the subcommittee meetings, is a bit more cautious about the program. "For clients of a
court system [mediation] is an unheard of concept," she says. Clients and attorneys can be uncomfortable with the lack of structure. Attorneys are used to the strict rules of court,
and clients have a certain picture of how the legal process works. Clients often expect mediation to be a form of arbitration that they can win. While she believes the program is a good
idea and that it will be highly beneficial to parties involved, she emphasizes that you need to be careful with something new.55
Statistics
During the spring and summer of 2001, a survey was prepared with the input of Professor Charles Bennett, Kathy Elton, Karin Hobbs, and the Estate Planning Section
Executive Committee. The survey was then sent to all the members of the Estate Planning section. The results of the survey are summarized in Chart 1.
Of the 32 reported mediations:
- 3 were resolved before mediation,
- 17 were resolved during mediation,
- 4 were resolved after mediation but before a court verdict,
- 3 were resolved by court verdict, and
- 5 remained unresolved at the time of the survey.
A full 75% of reported cases were settled without a court verdict. Would the cases have settled anyway? Because pre-program settlement rates are unavailable, it is impossible to tell.
However, the attorneys' responses to the survey questions indicate that mediation has left them with a generally favorable impression. A few of the highlights:
- 84% of respondents felt the mediator was effective.
- 73% of respondents felt that mediation was useful.
- 63% of respondents felt that the time the process took was just right.
- 68% of respondents say they are likely to use mediation if the need arises.
- 63% of respondents were satisfied with the results of mediation.
Interestingly, only 44% of the attorneys believed their clients were satisfied with the results.
Where is it Going?
Involved Parties' Views.
There is certainly talk of expansion. Both Karen Hobbs and Kathy Elton expect the probate mediation program to expand to Ogden
and Provo soon.56 As the program evolves, there will be "continual tweaking" as administrators get feedback from practitioners.57 The program's evolution will depend on a collaborative effort between all those involved.58
Judge Bohling sees a broad future for probate mediation. He believes that the program's usefulness will enable the program to continue to grow in experience and acceptance.59 The judicial education programs of the Administrative Office of the Courts often bring successful programs in one district to the attention of other districts. Judge Bohling indicates that there is a good opportunity for this with the probate mediation program.60
Independent Analysis and Recommendations.
The Probate ADR Pilot Program began with high hopes for success. Those involved believed it would be beneficial to parties and to the
court system. Are the benefits being realized? How "successful" has the program been to date?
Cathy A. Costantino and Christina Sickles Merchant in their book Designing Conflict Management Systems recommend evaluating two distinct aspects of a conflict resolution program: effectiveness (focus on outcome), and administration (focus on mechanics). Effectiveness is broken down into three elements: efficiency, effectiveness, and satisfaction. Administration is likewise broken down into three elements: functional organization, service delivery, and program quality. The Probate Mediation Program scores well in each of these categories; however, there is room for improvement.
Improvements may be made in the areas of education, mediator training, options, and party input.
Education
One thing that has been mentioned time and time again is that the program is new and that people do not know how to best utilize it to their benefit. Outside of the
legal profession, people are largely unaware of what mediation or even ADR in general are.61 Attorneys and their clients can be educated by time and trial by fire, or they can be educated by proactive efforts through the court system.
The educational outreach of the Probate ADR Pilot Program, as well as mediation programs in general may be improved by (1) providing clear, easy to understand information packets that
explain the program and the mediation process to parties and attorneys, (2) offering information sessions for those referred to mediation, and (3) providing mediation advocacy training
for attorneys. These educational efforts may be coordinated with organizations such as the Utah Bar Association and Utah Dispute Resolution.
Mediator Training
Research has shown that one area where the program is lacking is the regulation of mediators. The Office of Dispute Resolution and the Judicial Council ADR
Committee are currently evaluating options for improving the standards regulating mediators.
For the protection of the parties, the integrity of the system, and the integrity of mediation as a profession, there should be more quality control when it comes to mediators.
Some attorney comments from the 2001 survey illustrate the need for qualified and competent mediators:
"Mediator needed to have probate experience."
"My impression is that most of the attorneys certified at probate mediation are not very experienced in the area. We should encourage experienced probate & trust attorneys to
be certified - More attorneys would use mediation if more experienced mediators."
"The process worked to the point that we almost had a resolution with one point left
to resolve. The mediator excused herself at that point, expressing her confidence that that point would be resolved. (She had a prior commitment!) That point was not resolved and
everything fell apart. Needless to say, we were very disappointed."
Most of those who design conflict management systems are devoted to the concept of empowering the parties and providing them with as much autonomy as is reasonable. Under such a concept,
it is important that parties be able to choose the mediator that they want. However, there are two steps the program can take to assure the parties that they are getting a reasonably
qualified mediator:
(1) Provide stricter requirements for inclusion on the roster of probate mediators. The mediator should understand probate and tax law and should have an understanding of family
mediation principles.
(2) Require periodic assessment of roster mediators by Office of Alternative Dispute Resolution personnel. Such assessment could include surveys completed by parties and attorneys
following mediation, as well as in-person observation by an AOC mediator.
Options
Utah law authorizes a substantial amount of flexibility in designing ADR processes. Section 78-31b-2(4),(7)-(9). If the program and those involved truly want to empower
parties, they should explore allowing the parties to choose ADR options other than mediation and arbitration. This may also help address concerns that some cases are not suited for
mediation.
There is a whole continuum of established ADR processes. These include mediation, settlement conferences, early neutral evaluation, mini-trials, summary jury trials, and arbitration. There
are also "new" processes such as talking circles, family group conferences and "Michigan mediation" that should be explored as well. Each process gives parties
different levels of autonomy and neutral intervention.
If the court system is truly trying to cut back on the amount of litigation in Utah courts by promoting alternative means of resolving disputes, then prophylactic measures should be
explored as well. These measures occur at the estate planning stage. Education programs should be developed that inform attorneys and the public about ADR options both before and after a
dispute arises. ADR agreements can be incorporated into estate plans, such as the provision in George Washington's will, providing case-specific means of resolving any resulting disputes.
Party Input
The design stage of the program included all stakeholders (judges, attorneys, mediators, and clerks) except those who have the most at stake - the parties. In order
to be successful, the program needs to have an understanding of the needs of the parties, not just those who make their career in the law. The low level of client satisfaction indicates
that there are some needs that are not being met. At this point we do not know why they are dissatisfied nor do we know what the parties would like to help them through the process. An
effort must be made to obtain input from parties who have participated in mediation.
Conclusion
Overall, the Probate ADR Pilot Program has been well designed. In the short time it has been operating, it has seen significant success and shows great promise for the
future. However, like any program designed to meet the needs of society, it must be continually evolving and evaluating itself.
Footnotes
1.
The contents of this article are excerpted from a research paper submitted to the University of Utah College of Law and the Office of Alternative Dispute Resolution. © 2001 Gary L. Schreiner
2. See generally, James R. Holbrook & Laura M. Gray, Court-Annexed Alternative Dispute Resolution, 21 J. Contemp. L., 1995, at 1.
3. Quoted in Brian C. Hewitt, Probate Mediation: A Means to an End, 40-AUG Res Gestae 41 (1996).
4. James R. Holbrook & Laura M. Gray, Court-Annexed Alternative Dispute Resolution, 21 J. Contemp. L., 1995, at 1, 11.
5. Id.
6.
The following programs have been established: Court-Annexed ADR, Co-Parenting Mediation, Juvenile Victim-Offender Mediation, Adult Victim-Offender Mediation, Child Welfare Mediation, Landlord-Tenant Mediation, Truancy Mediation, Small Claims Mediation, and Probate Mediation.
7. Utah Code Ann. ¤ 78-31b-1 et seq. (repealed 1994).
8. Utah Code Ann. ¤ 78-31b-1 et seq. (2000).
9. Utah Code Ann.¤ 78-31b-3(1) (2000).
10. Utah Code Ann. ¤ 78-31b-5(1) (2000).
11. Utah Code Ann. ¤ 78-31b-5(2)-(3) (2000).
12. Utah Code Ann. ¤ 78-31b-5(2)-(3) (2000).
13. UT ST J ADMIN 4-150 statement of applicability.
14. Interview with Charles Bennett, Blackburn & Stoll, LC, Salt Lake City, Utah (July 12, 2001).
15. See, <http://courtlink.utcourts.gov/mediation/adr_prob.htm> and probate mediation packet.
16. Utah Code Ann. ¤ 78-31b-3(1) (2000).
17. Utah Code Ann. ¤ 78-31b-5(1)-(3) (e) (2000) (emphasis added).
18. Utah Code Ann. ¤ 78-31b-3(2)(b) (2000).
19. Utah Code Ann. ¤ 78-31b-8 (1),(4),(5) (2000).
20. Utah Code Ann. ¤ 78-31b-8(2) (2000).
2. Utah Code Ann. ¤ 78-31b-8(3) (2000).
22. Utah Code Ann. ¤ 78-31b-8(5) (2000).
23. The ADR Provider Code of Ethics.
24. Interview with Michelle Royball, ADR Administrator for the US District
Court - District of Utah, Salt Lake City, Utah (April 9, 2001).
25. Id.
26. Interview with Karin Hobbs, Chief Appellate Mediator, Utah State Court of
Appeals, and Kathy Elton, Director Alternative Dispute Resolution Programs, Administrative Office of the Courts, Salt Lake City, Utah (February 7, 2001).
27. Interview with Hon. William Bohling, Third District Court Judge, Salt Lake City, Utah (March 8, 2001).
28. Id; Bennett, supra note 14.
29. Judge Bohling, supra note 27; Hobbs and Elton, Supra note 26.
30. Hobbs and Elton, supra note 40.
31. Bennett, supra note 14.
32. Hobbs and Elton, supra note 26.
33. Id.
34. Royball, supra note 24.
35. Bennett, supra note 14.
36. Royball, supra note 24.
37. Royball, supra note 24.
38. Royball, supra note 24.
39. Judge Bohling, supra note 27.
40. Telephone Interview with Laurie Hart, Callister Nebeker & McCullough, Salt Lake City, Utah (February 21, 2001)
41. Third District Court, Alternative
Dispute Resolution in Probate: A Pilot Program of the Third District Court, Utah (Undated)
42. See also, UT ST J ADMIN Rule 4-510(6)(C)
43. Los Angeles Times, August 21, 1985
44. Justice Sandra Day O'Connor, Address at the Dedication Ceremony for the Friends Building of the Western Justice Center
Foundation (February 8, 1999).
45. Judge Bohling, supra note 27.
46. Id.
47. Hart, supra note 40.
48. Hobbs and Elton, supra note 26.
49. Id.
50. Id.
51. Id.
52. Id.
53. Id.
54. Id.
55. Royball, supra note 24.
56. Hobbs and Elton, supra note 26.
57. Id.
58. Id.
59. Id.
60. Id.
61.
Even within the legal profession there are still some who do not understand ADR in general and mediation in particular. For example, there is often great confusion about the differences
between mediation and arbitration.
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