Mediation, Attendance, And Settlement: Parties Failing To Attend Probate Court-Ordered Mediation Could Not Complain About Settlement Reached By Participating Parties And Judge Changes His Mind

Justice Tangeman, Who Concurred Before, Now Dissents After Rehearing.

        We posted on February 2, 2021 about Breslin v. Breslin, B301382 (2/6  1/26/21) (Gilbert, Yegan, Tangeman), an opinion authored by Justice Gilbert in which Justices Yegan and Tangeman concurred. The case held  the party receiving notice of a mediation ordered by the probate court and failing to participate in court-ordered mediation is bound by the result.

        Justice Tangeman, who concurred, has now dissented, having changed his position after a rehearing.

        Justice Tangeman explains his position: "A charitable gift must be carried into effect if it 'can possibly be made good.' (Estate of Tarrant (1951) 38 Cal.2d 42, 46.) The majority’s newfound requirement that a party participate in mediation before it can inherit ignores this command. It will reduce the number of gifts that 'can possibly be made good' by encouraging parties to send out mediation notices whenever they desire to eliminate gifts to beneficiaries that don’t appear—for whatever reason."