Breslin can be distinguished from most probate cases

I wholeheartedly agree with Ciarán O'Sullivan that Breslin v. Breslin, 62 Cal. App. 5th 801 (2d Dist., Div. 6) is one of the top trusts and estates cases of 2021. ("Top 5 trusts and estates cases of 2021," Dec. 15, 2021). I also agree with Mr. O'Sullivan that the Breslin case appears to stand for the proposition that a probate court has the power to order the parties to a probate contest into mediation. (If that were indeed the rule of Breslin, it would create a power for probate courts that courts hearing civil disputes do not have. Kirschenman v. Superior Court, 30 Cal. App. 4th 832, 835 (1994) (absent statutory authority, courts cannot require parties to participate in mediation or sanction parties for failure to do so); accord Jeld-Wen v. Superior Court, 146 Cal. App. 4th 536 (2007).

However, the Breslin opinion reveals facts that distinguish Breslin from the normal probate court contest and, to me, suggest that the Breslin case stands only for the proposition that a probate court has the power to order the parties to a probate contest into mediation only where the cost of the mediation is not to be borne by the parties -- a rare circumstance indeed.

In Breslin, the court ordered that the cost of the mediation be paid by the trust the parties were fighting over, not by the parties themselves. There is of course much less potential harm that an order into mediation creates where the mediation is free to the parties, and therefore much less reason not to make participation in a mediation mandatory.

I should note that in Breslin the non-appearing parties (along with the appearing parties) were (or claimed to be) the remainder beneficiaries of the trust, so that when the trust paid the mediator's fees, in effect the beneficiaries were paying them. However, the significance of this fact is mitigated by the fact that the burden of the mediator's fees would fall only upon those parties who "prevailed" in the mediation -- and having "prevailed," they would have assets from which to share in that burden.

Does the Breslin opinion leave open a possible method by which a party can prevent court-ordered mediation where the party is ordered to pay some portion of the mediation's cost: Object to the court's order tor a mediation? Probably not. The Breslin opinion noted that the parties who did not appear at (and therefore, according to Breslin, were bound by the adverse outcome of) the mediation did not object to the order for a mediation and could have. Breslin does not say that if they had objected, their objection would have prevented the trial court from ordering the mediation -- but it also doesn't say that their objection wouldn't. However, given the fact that the Breslin opinion unqualifiedly states: "The probate court has the power to order the parties into mediation," it seems unlikely that Breslin will be viewed as leaving open the question of whether a party can prevent a court-ordered mediation by simply objecting thereto. 

-- Judge Arnold Gold (ret.)

Los Angeles Superior Court