Courts embrace mandatory private mediation in civil cases

The 2nd District Court of Appeal's decision last year in Breslin v. Breslin, 62 Cal. App. 5th 801 (April 5, 2021), appears to recognize that our trial courts are overworked and need alternative means for resolving disputes. The ruling also suggests that more attorneys are likely to train to become mediators.

Breslin involved a probate petition by a trustee to determine the beneficiaries of the trust in the absence of an "exhibit A" to the trust, which supposedly listed beneficiaries -- including a number of charities.

After the probate judge ordered mediation among the interested parties, including the listed charities and the deceased's intestate heirs, one charity sent a notice of mediation to all interested parties. The notice stated that mediation may result in an agreement to distribute the deceased's assets. Further, it stated that nonparticipating parties "may be bound by the terms of any agreement reached without further action by the Court or further hearing," specifically warning that nonparticipating parties may lose their rights if they fail to participate in mediation.

A settlement was reached at the mediation among some but not all the beneficiaries and intestate claimants, which was followed by a petition to the probate court to confirm the settlement. Several of the beneficiaries objected to the settlement. However, the court overruled the objections, stating that the objectors failed to respond to the petition and failed to participate in the mediation. The case was appealed by the losing objectors.

In denying relief to the objectors, the Court of Appeal relied on a generally worded statute (Probate Code Section 17206) which allows a judge to enter orders "necessary or proper to dispose of the matters" presented in a petition in holding that the probate court had the power to order the parties to participate in private mediation. By not participating in private mediation, the objectors waived their right to an evidentiary hearing.

The California Supreme Court declined to review the case or order the Court of Appeal decision depublished. Hence, Breslin is good law.

Breslin may be applied to other civil cases since statutes like Probate Code Section 17206 exist in other parts of California law. For example, Code of Civil Procedure Section 128 indicates that every court has the power "to provide for the orderly conduct of proceedings before it and its officers" and the power to "amend and control its processes and orders to make them conform to law and justice."

Code of Civil Procedure Section 187 provides: "When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code."

Government Code Section 68070 provides that: "Every court may make rules for its own government ... not inconsistent with law or with the rules adopted and prescribed by the Judicial Council."

Cases also indicate that courts have inherent power to control litigation before them. See Western Steel & Ship Repair, Inc. v. RMI, Inc., 176 Cal. App. 3d 1108, 1116-17 (1986). Inherent powers of the court are derived from the state Constitution and are not confined by or dependent on statute. Walker v. Superior Court, 53 Cal. 3d 257, 267 (1991).

Parties in family law cases already have a mandatory obligation to mediate their child custody and visitation disputes, and to participate in mandatory settlement conferences prior to trial. These processes typically occur within the public court system. However, Breslin may be used to argue that private mediation should be required in custody and visitation cases, as well as in disputes concerning division of property and child and spousal support, prior to the occurrence of a trial on such matters.

In rejecting relief to review Breslin, the California Supreme Court seems to be indicating that our clogged trial courts need outside help in getting cases processed. The evident thinking is that forcing litigants to mediate privately will result in fewer cases going to trial. But the concomitant result could very well be that after spending money on a private mediator, many litigants will be unable to incur the added costs of going to trial. Also unknown is to what extent the parties who are ordered to privately mediate will be compelled to mediate. Presumably, a reasonable and good faith effort standard will be applied.

Breslin will likely create a need for more private mediators to mediate the cases ordered to private mediation. Further, the courts may develop a panel of qualified private mediators to refer cases to.

Given that mediation is a voluntary process, it is notable that Breslin stands for the proposition that parties can be forced to mediate. Whether that creates pushback by the existing pool of private mediators remains to be seen. 