Mediation in the Probate Court
By Duane Ruth-Heffelbower
"My Mom has had guardianship of my child for many years. I
am off of drugs now, working and married. I think I’m ready
to start having my child for overnight visits and eventually
back living with me. My Mom says she doesn’t think overnight
visits are a good idea, so here we are."
It isn’t unusual to hear a statement like this in a typical guardianship case in the probate court in Fresno, California. In that court, the judge is responsible for giving a guardian — often
a family member or a friend—the responsibility for caring for a
child when a parent is unavailable or unable to do so.
Case Referrals and Process
The court clerk gives parties information about mediation at their
first visit to the court. Parties can self-refer to mediation. However,
most referrals are made by the judge in court. When possible
the parties leave the courtroom with the mediator and begin
mediation immediately. Since everyone has come to court ready
to do battle, all the necessary information and all the necessary
people are present. Some cases are rescheduled to allow others
Next to divorce court, the place in the courthouse that affects
families the most is probate court. Probate courts always have
charge of decedent’s estates, a fertile source of family conflict.
Many also handle guardianships and conservatorships, another
emotionally charged aspect of family life. These probate cases are
often more about relationships than law, and the probate court
in Fresno wanted help in dealing
Mediations take place in the courthouse ADR suite or at the
CPACS office. CPACS uses a reconciling-interests-and-injustices process to help people step away from their positions
and look for the underlying needs and resentments that are
driving the positions.
Reconciling interests is the process described in Fisher and Ury’s
seminal book Getting to Yes. They point out that we cannot
negotiate positions. All we can
do with them is decide who has
the power to get their way. By
looking beneath the position
to the underlying interest we
discover matters that can be
negotiated. In the example at
the beginning of this article
the grandmother’s position
was “you are not ready.” That can’t be negotiated, just argued
about. If we ask why she thinks the mother isn’t ready we
begin to uncover interests.
If we take the time to identify all the interests
of all the parties we can look at possible
solutions that would address all the interests.
This is the missing piece in court.
Too often fights over decedent’s
estates would happen in open
court, about the worst possible
place to work at collaboration.
In addition, the court uses
investigators in guardianship
and conservatorship cases to
make recommendations to the court, but that recommending role
makes it difficult for them to help feuding family members come
The Fresno Pacific University Center for Peacemaking and
Conflict Studies (CPACS) has had a contract with the Fresno
courts to provide mediation in civil cases since 1999, and that
contract was expanded in 2012 to include the probate court.
If we take the time to identify all the interests of all the parties we
can look at possible solutions that would address all the interests.
This is the missing piece in court. In court each party merely
argues for their position. No one talks about their needs. If we
don’t identify all the needs/interests we will create an agreement
that fails to cover everything it should. That is why the court
ACRESOLUTION Spring 2013