Chapter 13.8 Alternative Dispute Resolution Process Under TEDRA

• Jurisdiction: Washington

§13.8 ALTERNATIVE DISPUTE RESOLUTION PROCESS UNDER TEDRA

RCW 11.96A.010, unchanged since 1999 when TEDRA was first enacted, sets forth TEDRA's purpose:

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The overall purpose of this chapter is to set forth generally applicable statutory provisions for the resolution of disputes and other matters involving trusts and estates in a single chapter under Title 11 RCW. The provisions are intended to provide nonjudicial methods for the resolution of matters, such as mediation, arbitration, and agreement. The [This] chapter also provides for judicial resolution of disputes if other methods are unsuccessful.

(1) Mediation

TEDRA's mediation provisions are found at RCW 11.96A.300. At the outset, any "party," as denned in RCW 11.96A.030(5), may cause a "matter," defined in RCW 11.96A.030(2), to be subject to mediation.

(a) Forms for notice of mediation

RCW 11.96A.300(1)(a) and (b) provide two forms of notice of mediation that can be served on parties, depending on whether a matter has or has not been set for hearing.

(b) Prior to any hearing being set

Notice of mediation can be served at any time if the matter has not been set for hearing (i.e., if no petition under RCW 11.96A.100 has been noted for hearing). RCW 11.96A.300(2). The form of written notice of mediation when a hearing has not yet been noted is set forth in RCW 11.96A.300(1)(a).

The statutory form of notice recites all of the procedural information that is set forth throughout the balance of RCW 11.96A.300, including how and when another party can object, as well as the timing and procedure for selecting a mediator. In In re Estate of Harder, 185 Wn.App. 378, 341 P.3d 342 (2015), the Court of Appeals indicated that substantial compliance with the mediation initiation procedures may be sufficient to compel TEDRA mediation under RCW 11.96A.300(1)(a), although notice in that case did not substantially comply.

(c) After a hearing has been set

If the matter has already been set for an initial hearing, then the statutory form of notice set forth in RCW 11.96A.300(1)(b) should be used, and notice must be filed and served at least three days before the hearing. This statutory form of notice also provides information regarding procedure, including how and when another party can object and a description of what might happen at the initial hearing.

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(d) Hearing on objection to mediation

If all parties agree to mediation, then mediation will occur in the normal course. However, if a party served with a notice of mediation does not wish to participate, RCW 11.96A.300(2) provides two different methods to object; which method applies will depend on whether there is a pending hearing date for an already-filed TEDRA petition.

If no hearing has been set, the objecting party must, within 20 days of being served with the notice of mediation, object by petition and note the petition for a court hearing, and provide notice to other parties no less than 10 days before the hearing, RCW 11.96A.300(2)(d), and no more than 20 days from filing the petition objecting to mediation, RCW 11.96A.300(2)(c).

If a hearing on the matter has already been noted, then the party objecting to mediation may either object via petition or may make his or her objection orally at the hearing. RCW 11.96A.300(3).

The burden is on the objecting party to show "good cause" why the mediation should not proceed. RCW 11.96A.300(2)(d), (3). Arguments that "good cause" exists not to mediate can include the following:

(1)	a fiduciary has been causing, or is about to cause, serious harm to the estate or trust;
(2)	no discovery has been done; it is too soon to mediate;
(3)	expert evaluation is necessary; the parties do not know enough about a complex matter to make intelligent decisions at mediation;
(4)	the claims are frivolous and should be dismissed rather than mediated;
(5)	the relief requested in the petition is simple and can be decided at the initial hearing for example, removal of a fiduciary under the provisions of the governing document and replacement with the successor named in the governing document; or
(6)	mediation would be futile because the parties are too polarized (although this argument will rarely succeed standing alone).

The court's order either compelling mediation or relieving a party from the obligation to mediate is not subject to appeal or revision. RCW 11.96A.300(2)(d).

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"If the court determines that the matter should not be subject to mediation, the court shall dispose of the matter by: (i) Deciding the matter at that hearing, but only if the petition objecting to mediation contains a request for that relief, (ii) requiring arbitration, or (iii) directing other judicial proceedings." RCW 11.96A.300(2)(d).

(e) Selection of a mediator

Once mediation is agreed to or ordered, the parties must each, within 30 days of the receipt of the initial notice, or within 20 days of court determination, whichever is later, furnish all other parties or their virtual representatives with a list of acceptable mediators; if the parties cannot agree on a mediator within 10...