Alternative Dispute Resolution (ADR) Options in Probate
Alternative Dispute Resolution (ADR) is a term that refers to a number of processes that can be used to resolve a conflict, dispute or claim without going to trial. ADR has several advantages. For instance, many dispute resolution processes are cheaper and faster than the traditional legal process. Certain processes can provide the parties involved with greater participation in reaching a solution, as well as more control over the outcome of the dispute. In addition, ADR processes are less formal and have more flexible rules than the trial court.
Following are the ADR options currently available for Probate cases: Mediation; Voluntary Settlement Conferences, and Mandatory Settlement Conferences. In addition, parties may explore private ADR options outside of the Court. Parties may voluntarily stipulate to private mediation, binding or non-binding; discovery referees; or early neutral evaluation at any time.
What is Mediation?
Mediation is a confidential, non-binding process in which a trained mediator acts as a neutral person who facilitates communication between disputants and assists parties in reaching a mutually acceptable resolution of all or part of their dispute. The mediator is not the decision-maker and does not resolve the dispute -- the parties do. A mediator is often able to more fully explore the parties' underlying interests, needs and priorities. Mediation is a flexible and less formal process that may reduce the time and costs often associated with a formal trial.
Mediation may be particularly effective when family members have a dispute or when emotions are getting in the way of resolution. An effective mediator can hear the parties and help them communicate with each other in a constructive manner.
NCRC – National Conflict Resolution Center
Guardianship and Conservatorship cases of the Person may be eligible for free mediation through the National Conflict Resolution Center (NCRC). Cases suitable for this mediation program will be referred directly by the court. https://www.ncrconline.com/mediation-conflict-resolution/community-mediation/
Many other mediators and organizations offer private probate mediation services and have websites or advertise in various publications.
Voluntary Settlement Conference (Civil Settlement Conference Program - CSCP)
The goal of a settlement conference is to assist the parties in negotiating a resolution of all or part of their dispute. Several San Diego Superior Court Judicial Officers are available to hear a settlement conference. Parties interested in participating should contact the clerk of the preferred Judicial Officer to check for availability and willingness to hear your Probate matter. For more information, please refer to the Settlement Conference Frequently Asked Questions.
To schedule a settlement conference in the Central Civil Division, refer to the list of Civil Settlement Conference Program (CSCP) judges and contact the clerk in their department.
Civil Settlement Conference Program (CSCP) General Rules
- Settlement Conference: Settlement briefs are to be submitted to the settlement conference judge at least five (5) court days prior to the hearing. Settlement Conference Briefs, must be submitted directly to the Settlement Conference Judge and not filed. Settlement Conference Briefs are not eligible for E-Filing.
- Settlement Conferences are usually calendared on Friday mornings or afternoons and may be calendared by calling the Courtroom Clerk in the department listed in the attached form, “Civil Settlement Conference Program (CSCP) Available Judicial Officers”. Please be advised that settlement conferences may be calendared 60 to 90 days from the date of reservation. The court expects compliance with San Diego Superior Court Local Rules 2.2.1, 2.2.2, and 2.2.3.
Mandatory Settlement Conference (MSC)
If ordered to attend a Mandatory Settlement Conference (MSC), the Court will appoint an attorney form the Probate Settlement Attorney Panel as the settlement conference Judge. All parties and their attorneys must participate, either virtually or in person. MSCs must take place at least 10-days before the next Case Management Conference. The appointed settlement attorney will reach out to the parties to set up the date, time, location or virtual platform for the MSC. General rules for the MSC are set forth below and more fully in San Diego Superior Court Local Rule 4.22.10.
Mandatory Settlement Conference (MSC) General Rules:
- Meet and Confer Requirements. Counsel must meet and confer either virtually or in person before the MSC to resolve as many issues as possible and to identify those issues which remain unresolved. The results of this conference will be included in the Settlement Conference Brief.
- Settlement Conference Briefs. Each party must prepare a Settlement Conference Brief and deliver a copy to each party and the settlement attorney, prior to the MSC. The brief should not exceed 10 pages and must contain a summary of the dispute, the procedural background of the case, any pending motions or other dispositive pleadings, a brief description of any legal issues or material facts which are not in dispute, any stipulations reached by the parties affecting trial of the matter, a specific proposal for the resolution of each contested issue and the reasons for the proposed resolution, and an addendum listing all witnesses expected to be called at trial, all documents expected to be introduced at trial, and any evidentiary objections by the opposing party. The Settlement Conference Brief shall not become part of the court file and will be available for retrieval by the filing party at the MSC.
- Settlements.If a settlement is reached, a Stipulation and Order After Mandatory Settlement Conference (PR-164) must be completed and submitted to the court for review. If approved, the future hearing dates may be vacated. If a settlement is not reached, the matter will be heard at the scheduled case management conference.
Becoming a Volunteer Settlement Attorney
What is a Temporary Judge and/or a Settlement Attorney
A court-appointed temporary judge is an attorney who has satisfied the requirements for appointment under California Rules of Court, rule 2.812 and has been appointed by the court to serve as a temporary judge in that court. Settlement attorneys are attorneys who assist the court in settlement conferences.
If you are interested in serving as a Settlement Attorney, please refer to the Temporary Judge/Settlement Attorney Program.