Alternative Dispute Resolution in Probate Cases

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Alternative Dispute Resolution in Probate Cases

If a party files an objection in a guardianship, conservatorship or other probate case, the parties must attend mediation to try to resolve the issues before the case can move forward.

Code of Judicial Administration Rule 6-506.


Pre-mediation conference

The court might schedule a pre-mediation conference before sending the case to mediation. If one is scheduled then at the conference the judge will:

  • determine whether there is a good reason the parties should not try to mediate;
  • ensure that a guardianship respondent has been provided an attorney, or that the process provided in Utah Code section 75-5-303 has been followed;
  • determine all interested persons who should receive notice of mediation;
  • determine whether any interested person should be excused from mediation;
  • talk about how to select the mediator or determine the process and time frame for selecting the mediator;
  • determine the issues for mediation;
  • set deadlines;
  • modify initial disclosures if necessary and address discovery;
  • determine how mediation costs will be paid; and
  • enter a mediation order.

The court will send notification of the pre-mediation conference to the parties and all interested persons.


Rights of interested persons in the mediation process

"Interested person" includes heirs, devisees, children, spouses, creditors, beneficiaries and others having a right or claim in a trust or estate of the decedent or protected person. For a complete definition see Utah Code 75-1-201.

Interested persons have the right to be present and participate in the mediation and to  consult with or be represented by their own attorney.

The interests of the interested persons cannot be negotiated unless the interested persons specifically waive that right in writing.

If an interested person does not participate in mediation after they've received notice, the court may find that they have waived their right to object to the resolution of the issues, unless they are excused from mediation by the court.


Notice of mediation

Once mediation is scheduled, the petitioner must serve notice of the following to all interested persons following Utah Rule of Civil Procedure 5:

  • The time, date, and location of the scheduled mediation;
  • The issues to be mediated as provided in the pre-mediation scheduling conference order;
  • A statement that the interested persons have a right to be present and participate in the mediation, that the interested persons have a right to consult with or be represented by their own counsel, and that the interests of the interested persons cannot be negotiated unless the interested persons specifically waive that right in writing; and
  • A statement that, unless excused by the court, an interested person who fails to participate after being served notice of the mediation may be deemed to have waived their right to object to the resolution of the issues being mediated.

Additional issues may be resolved at mediation as agreed upon by the mediating parties and the mediator.


After mediation

Once the mediation has taken place, the petitioner must notify all interested persons in writing of the mediation's outcome, including any proposed settlement of additional issues.

Anyone who was excused from mediation has the right to object to the settlement of any additional issues within 7 days of receiving written notice of the settlement.

Any objection to the settlement of additional issues must be reduced to a writing, set forth the grounds for the objection and any supporting authority, and be filed with the court and  mailed to the parties named in the petition and any interested persons as provided in Utah Code section 75-1-201(24).


Deadline for completing mediation

Mediation must be completed within 60 days from the date of referral. If the parties agree to a different date, the parties must file notice of the new date with the court.


Mediation Fees

If the estate or trust has liquid assets, and the personal representative, trustee, guardian, or conservator, as applicable, is a mediating party, the estate or trust must pay the mediator's fees.

Otherwise, the parties will share the cost of the mediation but may  later request reimbursement from the estate or trust if the estate or trust has liquid assets.

A party may petition the court for a waiver of all or part of the mediation fees if the party cannot afford mediator fees or for other good cause.

If the court grants a waiver of mediation fees, the party must contact the ADR Director who will appoint a pro bono mediator.


Initial disclosures

Within 14 days after a written objection has been filed, the parties must comply with the initial disclosure requirements of Rule 26.4 of the Rules of Civil Procedure. See the Initial Disclosures web page for more information.


Written settlement agreement

If mediation results in a written settlement agreement, upon a motion from any party, the court may enter orders consistent with its terms. The  filing of an objection under paragraph (2)(B)(iv)(a) does not preclude the court from entering orders consistent with the resolved issues.


Remaining issues

If issues remain to be resolved after the conclusion of mediation, the parties must request a pretrial conference with the assigned judge to establish the deadlines for any supplemental initial disclosures, fact discovery, expert disclosures, expert discovery, and readiness for trial. See the Getting Ready for Trial web page for more information and forms.


Finding a mediator

See the court's roster of mediators to find a mediator.