Do you want to know how the author of a new law says he intends to change alternative dispute resolution in California – and what might draw legislators into further action? Among other changes, Senate Judiciary Committee Chair Tom Umberg aims to have market forces push ADR providers into compliance with certain ethical standards, disclosure requirements, and complaint handling procedures. The primary vehicle will be a new State Bar certification for all neutrals conducting nonjudicial ADR procedures.
Following are Senator Umberg’s statements in the order he made them in a recent public interview. These mainly explain how he aims to reshape the practice of mediation. You’re invited to also review the article linked below. This provides key excerpts of the newly-enacted Business and Professions Code section 6173 with links to the specified standards:
https://mediate.com/will-you-become-a-california-state-bar-certified-provider-of-mediation-services/
Minimum Elements? Generally, what does Senator Umberg expect the certification program to include? “First, certain ethical standards, and disclosure standards, those I think are initial prerequisites…the number of matters handled for a particular party…whether or not the individual has training…”
Incentive? Does the State Bar have an incentive to create a robust program? “If the Bar’s not amenable, I’m carrying the Bar bill this year so I’ll help to make them amenable.”
Who’s Covered? “It’s not my intent to include ombudspersons…and others that facilitate dispute resolution. It is my intent in particular to have this apply to those who actually make decisions in dispute resolution…At the end the day…you can walk away from mediation. After you’ve signed up for arbitration, there’s a consequence from walking away…”
Did he intend community mediation non-profits be covered? “If they’re advertising, yeah, if they’re seeking folks to use their service I suppose in the realm of consumer arbitration they might, but I don’t think so…If that needs to be clarified, we’ll clarify it.”
Legislative Response to Non-Adoption? How would he expect the Legislature to respond if major ADR providers decide not to become certified? “I’m termed out at the end of 2026. I don’t know if we’ll have any results by then. We’ll see if someone wants to pick up the cudgel… typically it requires a scandal.”
Consequences for Nondisclosure? What should the consequences be if a mediator fails to disclose matters that might create an appearance of bias? “You’d have to look at it on a case-by-case basis as to what the sanction is. The sanction I suppose is to undo whatever agreement has been reached in mediation, or the sanction could be to challenge the arbitration award if it turns out that the arbitrator failed to disclose that she invited somebody on a cruise and they happened to choose that person as the arbitrator without disclosure…If ADR firms are providing people with lunches, then I think they should disclose that…If someone handed me their business card at a bar function…that’s not going to be a basis to void the contract after mediation I don’t think.”
[**Arbitration vs. Mediation Disclosures? Ron notes that in arbitration, existing law already required very detailed arbitrator disclosure, and specified the consequences for non-disclosure. California Code of Civil Procedure section 1286.2.(a)(6) states
“the court shall vacate the award if the court determines…An arbitrator making the award…failed to disclose…a ground for disqualification of which the arbitrator was then aware.”
To be certified, the new Business and Professions Code section 6173 will now require all mediation providers to comply with ethics and disclosure standards equivalent to specific Rules of Court. These previously applied only to mediators on court panels. But in contrast to arbitration, these Rules state they
“are not intended to…create a basis for challenging a settlement agreement reached in connection with mediation.” – Rule 3.850 (b)(2)**]
Unanticipated Issues? Will the Legislature address these? “To the extent that there are issues you want to surface, sooner is better than later… if there’s some problem, some ambiguity that should be resolved, I do clean-up bills…Early in the session is much better.”
Solo Practitioners? What if the requirements or the cost of certification tend to push solo practitioners out of the market? “I do want the marketplace to act as a discriminator between those who have agreed to adhere to a certain standard of ethics, those who have agreed to adhere to a certain standard concerning transparency [and those who haven’t]. So, am I concerned that those who don’t want to agree to maintain a certain standard of ethics or transparency, that they may be disadvantaged? That doesn’t concern me. No.”
Underrepresented Communities? What about impacts on underrepresented communities? “I think that’s a fair question. I think that’s a good question to address to the Bar. If you’re going to require that folks take a course in ADR or some such thing, that we do so in a way that doesn’t discriminate based on resources… that’s a place where legislators should step in. If I see, or my successors I think see, that the Bar is using this process to basically in a de facto way or a de jure way discriminate against solo practitioners, or those who are qualified but economically disadvantaged, then that’s an area that needs correction.”
All answers above are direct quotes from Senator Umberg’s interview on December 9, 2024 in a public program sponsored by the California Lawyers Association. The questions are paraphrased for readability. He was interviewed by Mattie Robertson, Deputy Director of the Center for Negotiation & Dispute Resolution at the UC College of the Law, San Francisco.
You’re encouraged to contact the State Bar, and/or Senator Umberg to identify any issue in this coming certification program you believe may need clarification – and “sooner is better.”
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