Aternative Dispute Resolution In Probate

A Pilot Project of the Third District Court, Utah

Watch the ADR Video Video

  1. Parties to probate disputes are required to participate in alternativedispute resolution,sometimes called ADR (Rule 4-510 of the Rules of Judicial Administration). Because probateprocedure differs from usual civil procedure, the Third District Courthas adapted some of the ADRrules to probate cases.
  2. All probate disputes that are not resolved by the law and motionjudge are automaticallyreferred by the court to the ADR program at the time the case is referredto a judge for trial. Bydefault, the form of ADR is mediation but parties may agree to substitutenon-binding arbitration orbinding arbitration. The rules provide that mediation shall becommenced within 30 days of the dateof referral. To exit ADR prior to completing the process, a motionto withdraw from probatemediation (ADR Deferral Notice) and a request for a scheduling conference must be filed withthe assigned judge.
  3. The fees of the mediator are to be paid in advance. If a PersonalRepresentative, Trustee,Guardian or Conservator with liquid assets is a party, the estate ortrust will pay the mediator's fees. Otherwise, the earliest petitioner in the matter(s) referred to mediationwill pay but is entitled toreimbursement from the estate or trust. Ultimate responsibilityfor reimbursing the mediator's feesis reserved for the court to determine absent agreement of the parties. If the parties cannot affordmediator fees or there is another good reason, a pro bono mediatormay be appointed through the Director of Dispute Resolution, Administrative Office of the Courts:
    Nini Rich
    Phone: 801-578-3982
    Fax: 801-578-3843
    ninir@email.utcourts.gov
  4. Discovery may proceed during mediation proceedings (URCADR Rule 101(f)). However,the initial disclosure and the discovery and scheduling conferenceprovisions of Rule 26(a)(1) and (f)of the Utah Rules of Civil Procedure are automatically stayed by thecourt for 60 days following thereferral to ADR. This stay ends when a motion to withdraw fromprobate mediation is filed.
  5. ADR is expected to be completed within 60 days from the date of theautomatic referral. Ifthe parties agree to a different date, notice of the new date shouldbe filed with the court. Only theassigned judge can change the 60 day suspension of Rule 26(a)(1) and(f).
  6. Upon completion of ADR, the plaintiff is required to notify the courtof the outcome on aform provided by the court. This is required for purposes ofboth case management and tracking theresults of mediation. All parties should understand that to givean agreement the force of a judgment,a motion must be made and a judgment entered by the assigned judge.
  7. The "plaintiff" in probate proceedings is presumed to be the earliestpetitioner in thematter(s) referred to mediation and may have duties under Rule 4-510and Rule 26. A motion todesignate another party as "plaintiff" should be brought before theassigned judge.
  8. Before a motion to to withdraw from Probate mediationis filed, the parties and attorneys must view a short videotapeon ADR which has been prepared by the court. The video is also available for purchase for $10 from the Director of Dispute Resolution.
  9. To assist parties in choosing a mediator, the court maintains a rosterof mediators for probate disputes.
  10. The probate forms are available from the probate clerk and from this website.

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Page Last Modified: 10/22/2008