Rule 16.1 Mediation

(a) Applicability. This rule applies to all actions and proceedings in the Probate Division of the Superior Court, with the exceptions stated in Rule 81.

(b) Order to Mediate. Except as provided in subdivision (c), the court, on its own motion or the motion of a party, at any time after the commencement of an action or proceeding to which this rule applies, may order the parties to participate in mediation of any issue or issues involved in the action or proceeding if the court determines that the issue or issues could be resolved or clarified through mediation and that the interest of the parties and the court in a fair, economical, and efficient resolution of the issues would be served thereby. The court’s order shall identify who shall participate in the mediation. The court shall have the discretion to establish the allocation of payment for the fees and expenses of mediation.

(c) Exceptions. The court will not order mediation if:

(1) at the commencement of the action or proceedings, the parties jointly certify that they have in good faith voluntarily engaged in mediation with a neutral of their choice regarding the issue or issues that would have been the subject of the court’s order;

(2) at, or at any time after, the commencement of the action or proceeding, the parties jointly agree on the record that they will voluntarily participate in mediation regarding the issue or issues that would have been the subject of the court’s order; or

(3) the court determines that mediation would not be appropriate due to the possibility of undue hardship or for other reasons.

(d) Conduct of Mediation. In a mediation ordered under subdivision (b):

(1) The mediation will be conducted by an individual mediator acceptable to the court and the parties. If no mediator who is acceptable to the court and the parties is available to conduct the mediation, the court may designate a mediator.

(2) The mediation may be conducted in-person, remotely, or by hybrid means, as the parties may agree or as the court orders.

(3) The mediation will be carried out on a schedule prepared by the parties in consultation with the mediator and approved by the court unless the court subsequently, on the request of the parties and mediator, approves a modification.

(4) The mediator may meet with each party separately prior to the mediation and may meet with any party separately at any time during the mediation.

(5) The parties are expected to attend all mediation sessions and to mediate in good faith. Attorneys may attend mediation sessions with their clients.

(6) If at any time the mediator determines that the issues are not suitable for mediation, the mediator may refer the matter back to the court to be determined in further proceedings as ordered by the court.

(7) The mediator has no authority to make a decision or impose a settlement upon the parties. Any settlement must be voluntary. The parties may reach a partial settlement on the issues and preserve the right to litigate remaining issues. In the absence of a settlement, the parties retain their rights to a resolution of all issues through litigation.

(8) Any agreement reached by the parties through the mediation process on all or some of the disputed issues must be reduced to writing, signed by each party, and filed with the court by the parties.

(9) If no settlement is reached by the date specified in the schedule approved or modified under paragraph (2), the parties must notify the court in writing. The matter will then be determined by the court as provided in any agreement reached in the mediation and approved by the court or, in the absence of agreement, as ordered by the court.

(e) Sanctions. If a party, lawyer, or other person who is required to participate in mediation under this rule does not appear at the mediation, or does not comply with any other requirement of this rule or any order made under it, unless that person shows good cause for not appearing or not complying, the court will impose one or more of the following sanctions:

(1) The court will require the party or lawyer, or both, to pay the reasonable expenses, including attorney fees, of the opposing party, and any fees and expenses of the mediator incurred by reason of the nonappearance, unless the court finds that such an award would be unjust in the circumstances.

(2) In addition, the court may upon motion of a party, or upon its own motion, order the parties to submit to mediation, dismiss the action or any part of the action, render a decision or judgment by default, or impose any other sanction that is just and appropriate in the circumstances.