Utah State Courts

Alternative Dispute Resolution In Probate - A Pilot Project of the 3rd District Court, Utah

Parties to probate disputes are required to participate in alternative dispute resolution, sometimes called ADR (Rule 4-510 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 rules provide that mediation shall be commenced within 30 days of the date of referral. To exit ADR prior to completing the process, a Motion to Withdraw from Probate Mediation (ADR Dispositional Notice - PDF) and a request for a scheduling conference must be filed with the assigned judge.

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 director who will appoint a pro bono mediator.

Discovery may proceed during mediation proceedings (URCADR Rule 101(f)). However, the initial disclosure and the discovery and scheduling conference provisions of Rule 26(a)(1) and (f)of the Utah Rules of Civil Procedure are automatically stayed by the court for 60 days following the referral to ADR. This stay ends when a Motion to Withdraw from Probate Mediation is filed.

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. Only the assigned judge can change the 60-day suspension of Rule 26(a)(1) and(f).

Upon completion of ADR, the plaintiff is required to notify the court of the outcome on a form provided by the court. 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 and Rule 26. A motion to designate another party as "plaintiff" should be brought before the assigned judge.

Before a Motion to Withdraw from Probate Mediation is filed, the parties and attorneys must view a short video on ADR which has been prepared by the court. The video is available for viewing online at http://www.utcourts.gov/mediation/media/selectMedia.asp

To assist parties in choosing a mediator, the court maintains a roster of mediators for probate disputes.

The probate forms are available from the probate clerk and from this website.

• ADR Dispositional Notice - PDF
• ADR Deferral Notice - PDF