Here’s a short article you might be interested in.
Using a recent California appellate decision as a jumping off point, it identifies problems with mandatory mediation and recommends that courts use good dispute system design procedures to reduce risks of creating Frankensteins – mediation that produces injustices. Of course, some courts have policies fulfilling the ideal of mediation as Good Samaritans.
The discussion begins by analyzing Breslin v. Breslin, a recent 2-1 decision by the California Court of Appeal. In this probate case, some potential beneficiaries failed to attend mandated mediation. The parties who attended the mediation reached an agreement and the appellate court upheld a decision enforcing the agreement, thus causing the non-participating parties to forfeit their rights.
The majority faulted the non-participating parties for failing to attend the initial probate hearing and object to mediation at that time. According to the dissent, the non-participating parties filed an objection before the court approved the mediated agreement, which “disinherited” them and “redistributed their gifts to other parties contrary to the testator’s express directions.”
The Breslin majority wrote, “the mediation ordered by the probate court, like the trial in Smith, was an essential part of the probate proceedings.”
This article explains why the Court’s perspective takes dispute resolution down the wrong road, and it recommends that courts use dispute system design procedures, particularly to protect against coercion, noting that courts have many “tools in their toolboxes” to achieve their dispute resolution goals.
It builds on (and links to) important work by Lisa Blomgren Amsler, Jim Coben, Sarah Cole, Dwight Golann, Julie Macfarlane, Jan Martinez, Carrie Menkel-Meadow, Frank Sander, Stephanie Smith, Peter Thompson, Nancy Welsh, and others.
The folks who read earlier drafts don’t all agree about my arguments.
See what you think.