Alternative Dispute Resolution In Probate - A Pilot Project of the 3rd District Court, Utah
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Parties to probate disputes are required to participate in mediation or other Alternative Dispute Resolution (ADR) process (Rule 4-510.05 of the Rules of Judicial Administration). Because probate procedure differs from usual civil procedure, the Third District Court has adapted some of the ADR rules to probate cases.
All probate disputes that are not resolved by the law and motion judge are automatically referred by the court to the ADR program at the time the case is referred to a judge for trial. By default, the form of ADR is mediation but parties may agree to substitute nonbinding arbitration or binding arbitration.
The fees of the mediator are to be paid in advance. If a Personal Representative, Trustee, Guardian or Conservator with liquid assets is a party, the estate or trust will pay the mediator's fees. Otherwise, the earliest petitioner in the matter(s) referred to mediation will pay but is entitled to reimbursement from the estate or trust. Ultimate responsibility for reimbursing the mediator's fees is reserved for the court to determine absent agreement of the parties. If any party cannot afford mediator fees or there is a compelling reason, they may petition the court for a waiver of all or part of the fees. If such waiver is granted, the party shall contact the ADR Director who will appoint a pro bono mediator.
Discovery may proceed during mediation proceedings (URCADR Rule 101(f)). ADR is expected to be completed within 60 days from the date of the automatic referral. If the parties agree to a different date, notice of the new date should be filed with the court.
Upon completion of ADR, the plaintiff is required to notify the court of the outcome on a form provided by the court to mediators. This is required for purposes of both case management and tracking the results of mediation. All parties should understand that to give an agreement the force of a judgment, a motion must be made and a judgment entered by the assigned judge.
The "plaintiff" in probate proceedings is presumed to be the earliest petitioner in the matter(s) referred to mediation and may have duties under Rule 4-510.05 and Rule 26. A motion to designate another party as "plaintiff" should be brought before the assigned judge.
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