California Mediation and Arbitration

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." 

 

 

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

Potential Beneficiaries Of Trust Received Notice, But Failed To Participate.

        After Don Kirchner died in 2018, the successor trustee of Kirchner's living trust found a document listing 24 charities with handwritten notes appearing to be percentages for  distributing the estate. The probate court confirmed the successor trustee and ordered mediation among interested parties. Apparently the parties received notice, but several parties, designated as the "Pacific parties," did not attend the mediation. The participating parties reached a settlement, the non-participating Pacific parties objected to the petition to confirm the settlement, and the probate court confirmed the settlement. The Pacific parties appealed. Breslin v. Breslin, B301382 (2/6  1/26/21) (Gilbert, Yegan, Tangeman).

        Affirmed. "The probate court has the power to order the parties into mediation. (See Prob. Code, section 17206 . . . .)" The dispositive case is Smith v. Szeyller, 31 Cal.App.5th 450 (2019), holding that "a party who chooses not to participate in the trial of a probate matter cannot thereafter complaint about a settlement reached by the participating parties." True, the Breslin case involved a mediation,  not a trial, but the mediation was  court-ordered, and parties receiving notice could not blow it off without consequences.

        COMMENT: An online obituary for Don Kirchner states,  "Don was a generous man who loved God, loved his wife, loved his country, and his dogs (especially Lola, who was with him through his retirement years)."

 

Mediation: Ninth Circuit Orders Mediation Of Dispute Concerning Conditions For Holding Gun Shows At The Alameda County Fairgrounds

But Chief Judge Alex Kozinski “Wants No Part Of It”

     An en banc panel of the Ninth Circuit Court of Appeals, believing that the parties should attempt to settle their long-running dispute concerning the conditions for holding gun shows at the Alameda County fairgrounds, has ordered the dispute to mediation.  Nordyke v. King, No. 07-15763 (9th Cir. April 4, 2012) (for publication). 

     Judge Milan D. Smith, Jr., concurred, but “would have attached a copy of a proposed disposition in this case so that the parties would know what they would face in the event mediation fails.”

     Chief Judge Alex Kozinski, joined by Judge Ronald M. Gould, dissented.  We can only describe the dissent as “classic Kozinski”, expressed in his inimitable voice.  We reprint it, without further comment, in full:

“The parties have not asked for mediation; they have said nothing that suggests mediation would be fruitful; when asked about it in court, they displayed obvious distaste for the idea.  We overstep our authority by forcing the parties to spend time and money engaging in a mediation charade.  Our job is to decide the case, and do so promptly.  This delay serves no useful purpose; it only make us look foolish.  I want no part of it.”

Mediation/Costs/Attendance: Trial Courts Do Not Have Authority to Order Parties In a Complex Civil Action to Attend and Pay for Private Mediation

Court of Appeal Reminds That “The Essence of Mediation Is Its Voluntariness”

     Jeld-Wen was a minor player in a complex construction dispute. It was ordered by the trial court to attend a mediation and pay its share of costs. Jeld-Wen refused to attend, and was duly ordered to attend and sanctioned. Jeld-Wen sought a writ of mandate directing the trial court to set aside its ruling, and the Court of Appeal duly issued an order to show cause. Jeld-Wen, Inc. v. Superior Court, 146 Cal.App.4th 536, 53 Cal.Rptr.3d 115 (2007).

     Held: “[A] case management conference order requiring that parties in complex cases attend and pay for mediation is not authorized by the statutory scheme . . . and is contrary to the voluntary nature of mediation.” (Distinguishing Lu v. Superior Court, 55 Cal.App.4th 1264 (1997): “a referee appointed under section 639 may conduct a mandatory settlement conference in a complex case . . . “).