Will You Become a California State Bar Certified Provider of Mediation Services?

Pursuant to California Senate Bill 940 by Senator Tom Umberg, the State Bar of California will be  offering certification to all individual mediators and mediation provider organizations, regardless of  whether they or their panelists are lawyers. This is expected to have a major impact on the  development of the field in California. 

Following is a series of questions and answers about the certification program the legislation requires the State Bar to establish, with direct quotes and links to more details. 

Q. When did this happen? 

A. Governor Newsom signed Senate Bill 940 into law on September 29, 2024. This adds a new  section 6173 to California’s Business and Professions Code. 

Q. Where can I find the text of this new law? 

A. An official copy is available at the following link. See Section 1 of the bill which adds “Article 10.1.Alternative Dispute Resolution Certification Program.” to the B&P Code. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240SB940 

Q. Given that the program will be established and administered by the State Bar, will  certification be available only to active members of the Bar? 

A. No. The new law specifically provides that the Bar “shall not require a firm, provider, or  practitioner to be a licensee of the State Bar in order to be certified under the program.”  

Q. Will mediators and provider organizations be required to obtain this certification to offer  mediation services in California? 

A. No. Certification will be voluntary. However, Senator Umberg’s publicly-stated intent is that the  market will eventually push most providers into obtaining and maintaining this new State Bar  certification. This is consistent with the experience of other states with similar programs. It’s  expected that parties will become reluctant to choose uncertified providers, or providers who’ve  had their certification revoked, once certified mediators in good standing are available. 

Q. Will mediation providers have to prove their levels of competence, training, or  experience to become certified? 

A. No. The new law does require the State Bar to establish different certification levels, but  requires that 

“Higher levels or tiers are awarded to firms, providers, or practitioners that demonstrate a  higher level of commitment to accountability and consumer protection based on criteria  developed by the State Bar”,  

“The levels or tiers do not reflect an assessment of the quality of a firm, provider, or  practitioner” and that  

“The levels or tiers only reference standards of conduct described in subparagraph (A) or  (B) of paragraph (1), as applicable.” [emphasis added]  

Q. What are the specific standards of conduct with which individual mediators and provider  organizations will have to prove compliance? Where can these be found? A. The new law specifies that in order to be certified “The firm, provider, or practitioner requires, at  a minimum, its mediators to comply with ethical standards that are equivalent to the Rules of  Conduct for Mediators in Court-Connected Mediation Programs for General Civil Cases as  provided in Rules 3.850 to 3.860, inclusive, of the California Rules of Court.”  

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Official copies of these standards are available at the following link, beginning at Title 3, Division 8,  Chapter 3, Article 2: https://www.courts.ca.gov/cms/rules/index.cfm?title=three 

Q. What else will mediation providers have to do to obtain and maintain certification? A. The new law also specifies that providers will have to  

1) have “procedures in place for persons to make complaints” about alleged failures to  comply with the required standards, and 

2) have “procedures to remedy failures of…mediators to comply with the standards  described.” 

Q. How can providers design these required complaint procedures consistent with  California’s statutes protecting the confidentiality of mediation communications? A. SB 940 does not create new exceptions to these statutes. Five unanimous decisions by the  California Supreme Court and a dozen other appellate decisions have upheld them. They have  also repeatedly found widespread political support among users, providers, and the courts.  Fortunately, when crafting the applicable Rules of Court the Judicial Council also crafted detailed  complaint procedures, and vetted these through public comment and input. Then for more than 20  years they’ve been in effect, been tested, and been found to work well throughout California’s court  system. See Article 3 at the above link to these Rules. 

Senator Umberg drafted the new law to specifically require that 

“For mediators, those complaint procedures shall be substantially similar to the complaint  procedures specified in Article 3 (commencing with Rule 3.865) of Chapter 3 of Division 8 of  Title 3 of the California Rules of Court.” 

Rule 3.871 in Article 3 states that the intent of these complaint procedures is to “Preserve the confidentiality of mediation communications as required by Evidence Code  sections 1115-1128”, and that 

“All complaint procedures and complaint proceedings must be designed and conducted in a  manner that preserves the confidentiality of mediation communications, including but not  limited to the confidentiality of any communications between the mediator and individual  mediation participants or subgroups of mediation participants”, and that 

“All complaint proceedings must occur in private and must be kept confidential.” This is consistent with the legislative intent language of Evidence Code section 1122 that  “mediation documents and communications may be admitted or disclosed only upon agreement of  all participants, including not only parties but also the mediator and other nonparties attending the  mediation.” and that “Agreement must be express, not implied.” But see the mediator waiver requirement in Rule 3.860(b) quoted below. 

Q. Will the State Bar charge for certification? Could this create another barrier to entry for  new mediators wanting to enter the field, and further reduce provider diversity? A. A significant fee is nearly certain. SB 940 specifically prohibits the Bar from using attorneys’  annual license fees to fund development of the new program. It authorizes the Bar to charge  providers “a fee to cover the reasonable costs of administering the program” which “may be higher  in the early years of the program to reimburse the State Bar for costs related to the planning and  establishment of the program.” 

Unless the Bar takes great care in structuring this fee, yes it’s likely to create an additional barrier  for new mediators. This could further concentrate the market into the larger provider firms and  further reduce the diversity of providers.  

On the other hand, the bill specifically requires that certification be offered to mediators who are  not members of the State Bar. The new program may serve to widen the range of professional  backgrounds of mediators when they’re able to accurately state they’re State Bar certified. This  may further support diversity. 

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Q. What are some of the challenging questions and choices the State Bar faces in designing  and running this program? 

A. Following below are five of these. 

1. Remedies? What objective standards will the State Bar develop and publish so providers can  determine they have adequate procedures to handle complaints and remedy confirmed breaches  of the applicable standards? 

2. Revocation? SB 940 specifies that the new program will include “Authority for the State Bar to  deny or revoke certification for a failure to meet or maintain certification standards.” How will the State Bar design its revocation process? Will it follow the same complaint procedure  rules specified in the new law to decide what evidence will be allowed in this process – from a  complainant, an investigator, and/or a provider seeking to defend themselves against revocation? 

3. Disclosure? Will the State Bar require that certified providers keep written evidence that all  mediators have complied with Rule 3.855(b)(1) requiring disclosure? What about compliance with  the mandatory withdrawal requirement in (f)? This rule requires that 

“A mediator must make reasonable efforts to keep informed about matters that reasonably  could raise a question about his or her ability to conduct the proceedings impartially, and  must disclose these matters…[including] (A) Past, present, and currently expected interests,  relationships, and affiliations of a personal, professional, or financial nature; and (B) The  existence of any grounds for disqualification of a judge specified in [CCP] 170.1… (f)…Regardless of…consent…a mediator…must withdraw…if (1) The mediator cannot  maintain impartiality toward all participants” 

4. Confidentially Waiver? To become certified, will the Bar require all mediators to comply with  Rule 3.860(b)? This requires that: 

“The mediator must agree…that if an inquiry or a complaint is made about the conduct of  the mediator, mediation communications may be disclosed solely for purposes of a  complaint procedure conducted pursuant to rule 3.865 to address that complaint or inquiry.”  

5. Solo Mediators? Will the Bar establish objective criteria whereby a solo practitioner will be able  to establish that they credibly handle complaints against themselves and provide adequate  remedies? If not, will the Bar establish some system for approving independent outside  investigators or organizations and require solo practitioners to use these to handle complaints  against the mediator and/or to determine the adequacy of proposed remedies for complaints  deemed valid? 

You’re respectfully encouraged to consider the potential impacts of this new certification program,  to reach out to the State Bar to find out how they will be designing it, and to get involved in helping  them work through these and other important challenges you foresee. 

Ron Kelly

For more than thirty years, Ron Kelly has been actively involved in the formation of mediation law and policy. He initiated and guided the formation of California’s Evidence Code chapter governing mediation. He also played a central role nationally in shaping the Uniform Mediation Act. Ron’s trained thousands of judges,… MORE