Vt. R. Prob. P. 16.1

As amended through November 4, 2024

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.

Vt. R. Prob. P. 16.1

Adopted March 7, 2016, eff.5/9/2016; amended February 5, 2024, eff. 7/1/2024.

Reporter's Notes-2024 Amendment

Rule 16.1(b) is amended to enable the court to limit the participants in the mediation to a subset of parties and interested persons who have an interest in the issue being mediated. An issue to be mediated may only be of interest to a particular subset of parties and interested persons. For example, while a creditor might be an interested person in an issue to be mediated, a creditor is not a party. Likewise, parties who are beneficiaries should not be ordered to participate in mediation if their interest is not at issue. See V.R.P.P. 17 for the definitions of parties and interested persons.

Rule 16.1(d)(2) is added to provide the court and the participants in the mediation with the options of in-person, remote, or hybrid participation in the mediation. Former (d)(2)-(8) are renumbered (d)(3)-(9).

Reporter's Notes

Rule 16.1 is added to make clear that mediation may be ordered in a Probate Division proceeding and to provide standards and a procedure for the process. The rule is based in part on V.R.F.P. 18, promulgated July 20, effective September 21, 2015. The rule is not intended to preclude voluntary use of mediation or another form of ADR by agreement of the parties without judicial involvement. See discussion of Rule 16.1(c)(1) and (2) below.

Rule 16.1(a) specifies that the rule applies only in the matters covered by the Probate Division pursuant to V.R.P.P. 1.

Rule 16.1 provides that, with important exceptions set out in subdivision (c), the court may order mediation of any or all issues at any time after commencement of the action on its own or a party's motion on a determination that mediation would resolve or clarify the issues and that mediation would serve the interests of the parties and the court in "a fair, economical, and efficient resolution of the issues." The court has the discretion to establish the allocation of the fees and expenses related to mediation including, but not limited to, allocation of fees and expenses to be paid from the trust or estate.

Rule 16.1(c)(1) and (2) make clear that the rule is not intended to preclude voluntary use of mediation by agreement of the parties. Under paragraph (c)(1), the court will not order mediation if the parties certify that they voluntarily engaged in mediation before the action was commenced. Alternatively, under paragraph (c)(2), if the parties agree on the record after the commencement of the action that they will engage in mediation, mediation will not be ordered. Note that these two provisions come into play only if a party has moved for mediation and withdraws the motion or the court has indicated an intention to order mediation on its own motion. If no motion for mediation has been made or proposed, the parties are free to engage in mediation or another form of ADR at any time as part of their efforts to settle the issues between them.

Rule 16.1(c)(3) requires the court to refrain from ordering mediation if the court determines that mediation would not be appropriate due to undue hardship or for any other reason.

Rule 16.1(d) provides details of the process by which mediation ordered under Rule 16.1(b) is to be carried out. Paragraph (d)(1) provides that the court will ordinarily designate a mediator acceptable to the court and the parties. If no mediator acceptable to the parties is available, the court may designate a mediator. If no acceptable mediator can be found or agreed upon within a reasonable time, then under Rule 16.1(c)(3) the court will not order mediation.

Other provisions of subdivision (d) describe standard mediation practice. The mediation schedule prepared by the parties and mediator is subject to approval and modification by the court. The mediator may meet separately with the parties at the outset and may do so at any time during the mediation. The parties are to attend all sessions and participate in good faith. They may be accompanied by counsel. Under paragraph (d)(5), if the mediator determines for any reason that the matter cannot be mediated, the mediator may send the matter back to the court for judicial determination.

Paragraph (d)(6) provides that any settlement reached must be voluntary. The parties have the right to litigate any issues not settled in the mediation. Paragraph (d)(8) states that if no settlement is reached by the scheduled date, the parties must notify the court in writing. The court may then determine the matter in accord with any agreement that has just been reached, or may order further proceedings in its discretion.

Subdivision (e), based on V.R.C.P. 16.3(h) and V.R.F.P. 18(e), has been included to assure appropriate participation in the mediation process.

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