The Role of Mediation in Partition Disputes

By Underwood Law Firm

Mediation plays a significant role in partition disputes by providing a voluntary, informal, and non-adversarial process aimed at helping disputing parties reach a mutually acceptable settlement agreement. In partition actions, mediation plays a crucial role in resolving disputes through a less adversarial and more cost-effective alternative to litigation. The mediation process allows co-owners to collaboratively address issues like property valuation, buyouts, and equitable distributions, while avoiding the delays and costly expenses accompanying the traditional trial process. By utilizing mediation in the partition process, parties retain greater control over the outcome of their property ownership disputes. 

What is Mediation?

Mediation is the process designed to facilitate the resolution of disputes between two or more parties. More specifically, mediation is the voluntary, informal, and non-adversarial process designed to help disputing parties reach a mutually acceptable written agreement. (Cal. Code Regs., tit. 1, § 1212.) The process is facilitated by a neutral third party called a mediator; however, all decision-making authority remains vested in the parties. 

All mediation proceedings are confidential meaning that no communications between the parties and the meditator can be disclosed in subsequent judicial proceedings unless specific circumstances warrant an exception. These exceptions include circumstances involving danger to self or others, and abuse or neglect of a minor, dependent, or elder adult. Providing the mediation process with this level of confidentiality aims to promote open communication between parties without parties having to fear that statements made during mediation will be used against them later. (Cassel v. Superior Court (2011) 51 Cal.4th 113.) 

What is a Mediator?

Mediators encourage and facilitate the dispute resolution process by assisting parties with issue identification, promoting joint problem solving, and exploring potential resolution alternatives. (Id.) The concept of self-determination is crucial in mediations because it ensures that the parties are in control of their dispute’s resolution instead of having a third party impose a resolution by force. (Travelers Casualty & Surety Co. v. Superior Court (2005) 126 Cal.App.4th 1131.) Therefore, mediators must conduct the mediation in a procedurally fair manner, ensuring each party is given an opportunity to participate and make decisions without coercion. (Cal. Rules of Court, Rule 3.857.) Accordingly, mediators can share information or opinions based on their training or professional experiences, but they must always remain impartial and avoid representing any party as a lawyer or performing other professional services throughout the mediation process. (Id.) 

Mediators do not have authoritative decision-making power and cannot resolve or decide the dispute. (Cal. Code Regs., tit. 1, § 1212.) Further, mediators cannot influence the mediation’s result by reporting to the judge or final decision-maker why the mediation failed. (Foxgate Homeowners’ Assn, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1.) Thus, California law prohibits mediators from testifying about the mediation process in any subsequent civil proceedings, ensuring they remain neutral while protecting the mediation’s confidentiality. (Evid. Code, § 703.5.) 

Parties may proceed to arbitration if the mediation fails, and if specified in the agreement, the mediator may act as an arbitrator. (Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618.) Otherwise, the mediator’s role is strictly limited to facilitating communications and assisting the parties in reaching a mutually acceptable agreement through mediation.

Mediation’s Role in Partition Disputes

In partition disputes, mediators assist the parties in negotiating and reaching a settlement agreement using various techniques such as listening, suggesting, empathizing, and sometimes “cajoling” or persuading parties to facilitate settlements. (Radford v. Shehorn (2010) 187 Cal.App.4th 852.) In the partition context, mediators are responsible for identifying the goals and needs of each individual co-owner, offering the parties information and insight on California real estate and partition laws, facilitating negotiations, and ultimately, drafting a valid, legally binding settlement agreement if the parties reach a decision. As in any dispute, the mediator helps co-owners articulate their interests, understand their co-owners’ interests and generate options for a mutually agreeable resolution that represents the best interests of all co-owners. 

The California Legislature has a strong policy favoring mediation as an alternative dispute resolution mechanism that encourages a simplified, economical, and prompt resolution of disputes while reducing the court’s case backlog and simultaneously providing parties an opportunity to directly participate in their dispute resolution. (Simmons v. Ghaderi (2008) 44 Cal.4th 570.) This policy can be especially beneficial in partition disputes. For instance, mediation can be particularly helpful in disputes where physically dividing the property is inequitable or impossible, and a sale risks incurring unwanted tax liabilities or losing the property that at least one owner wants to keep. (Cummings v. Dessel (2017) 13 Cal.App.5th 589.) In short, mediation can help co-owners reach an agreement on how to manage or divide the property without having to undergo an expensive and contentious battle in court. 

Even so, there is no specific law or case mandating mediation in partition disputes in California. The general rule governing mediation in civil disputes, including partition, is that mediation is a voluntary process unless all involved parties agree otherwise. (Cal. Rules of Court, Rule 3.853.) As such, the California Legislature’s policy preference for encouraging mediation to reduce the court backlog is merely encouragement that cannot be translated into a mandatory requirement for meditation in every partition dispute. Courts can, however, order mediation in a specific case if the circumstances require. 

What is an Example? 

“Shawn” and “Julie” are siblings who recently inherited their parents’ rental property in California as tenants in common. When the property’s existing lease expired, Julie wanted to continue renting the property out as their parents always had, but Shawn preferred to sell and cash out his share of the sale proceeds. Unable to agree on the property’s future, Julie filed for partition to protect her interest in the property. 

Before the case proceeded to trial, the court ordered Shawn and Julie to participate in a mediation, facilitated by a neutral third party, Sarah the mediator. With Sarah’s help, Shawn and Julie reached a compromise: Julie would refinance the property and buy out Shawn’s interest at the current appraised value, allowing Shawn to cash out his interest. With Sarah’s expert guidance, mediation helped preserve Shawn and Julie’s sibling relationship while avoiding the added stress of a costly litigation process. 

For more information on this or other Real Estate Law topics, visit the website for the Underwood Law Firm.

Elijah Underwood operates California’s Number 1 Partition Law Firm, with experience handling partition trials and complex partition actions including multiple properties, multi-family, industrial, commercial, and million-dollar properties. His firm is currently handling around 200 partition actions throughout California, and he is considered by many to be the foremost expert on partition law in California. Mr. Underwood is a graduate of UC Law SF, and UC Santa Barbara.