Can We Settle Probate or Trust Disputes Without a Court Hearing?
First, the parties can voluntarily agree to meet to discuss their differences. If they reach agreements, those agreements can be written and entered before the court as agreed orders. RCW 11.96A.220, 230. If the parties cannot reach agreement, they can voluntarily involve persons they trust to help them work through their difficulty, or they can employ a professionally-trained mediator or collaborative teams to facilitate their negotiations.
Second, one can compel the parties to a probate or trust dispute to first mediate and then arbitrate disputes. In mediation, parties negotiate to agreement. If that proves impossible, an arbiter hears the case as a private judge and decides the disputed issues. RCW 11.96A.260-320. These are called TEDRA (Trust and Estate Dispute Resolution Act) mediations or arbitration.
TEDRA mediation/arbitration is commenced by filing a summons and petition. RCW 11.96A.100. If there are parties to a TEDRA mediation/arbitration who cannot meaningfully participate in the process, the court may appoint a special representative to defend the interests of minor, incompetent, unborn, or unknown persons. RCW 11.96A.250. Some members of a class of parties to a dispute may represent all the members of that class, under certain circumstances (virtual representation). RCW 11.96A.120. The court may also appoint a guardian ad litem to represent the interests of minor, incompetent, unborn, or unknown persons, and if such a person is appointed, her powers supercede those of the special representative. RCW 11.96A.160. If a party refuses to mediate and/or arbitrate TEDRA matters, the court may issue an order compelling participation. RCW 11.96A.320.
If no court proceedings have been initiated, one commences the TEDRA mediation process by serving a notice, prescribed in the statute, on all parties. RCW 11.96A.300(1)(a). If court proceeding have commenced, the same notice must be filed and served at least three days before the scheduled hearing. RCW 11.96A.300(1)(b). Mediators are selected by agreement, or, lacking agreement, by the court. Such mediation sessions must last at least three hours. RCW 11.96A.300(6). Costs of the mediation are paid by the parties equally. RCW 11.96A.300(8). The court may order that no mediation occur for good cause shown, but one party refusing to mediate does not constitute good cause. (Legislative drafter’s comments to RCW 11.96A.300).
If mediation fails, or if the court orders that no mediation shall occur, a party may file and serve on all parties a notice of arbitration, which form is specified in the statute, within twenty days after mediation ended. Arbiters are selected by agreement or, failing agreement, by the court. RCW 11.96A.310. Costs of arbitration are paid by the parties equally, and each party bears its own costs of representation and witnesses (RCW 11.96A.310(5)(e)), unless the arbiter decides otherwise as justice may require. RCW 11.96A.310(6). Any party may appeal the arbiter’s decision to the superior court. The court or a jury (if demanded) will consider all the matters as if no arbitration had occurred. The non-prevailing party pays the attorneys fees and costs of any appealed TEDRA arbitration decision. RCW 11.96A.310(10).