Mediation Aspects of SB940 in California: Initial Mediator Certification Recommendations

This is the first article in an ongoing series providing updates on SB 940 and the ADR Working Group tasked with developing framework recommendations for the California State Bar. Under Business and Professions Code 6173, the Bar will oversee a new voluntary mediator certification program in the state.

Welcome to Mediation Aspects of SB940 in California, the first of a series providing updates on Business and Professions Code 6173. Effective January 1, 2025, the new law created a voluntary certification program for mediators and other alternative dispute resolution (ADR) professionals in the state of California. The new program “aims to promote adherence to ethical standards for ADR services and establish consumer protection mechanisms.”[1] The goal of this series is to shed light on the Working Group’s internal processes and provide context to the ultimate mediation-related recommendations by helping the public to understand some key points of discussion as the framework is developed.

First introduced as SB 940 in response to a scandal involving misuse of attorney trust account funds,[2] BP 6173 is the culmination of decades-long attempts to regulation dispute resolution professionals, which has until now, been solely governed by ethical standards and the honor system. While some may view this lack of regulation as an invitation to chaos and inappropriate conduct, this author has found their colleagues working in the mediation profession especially sensitive to ethical values and quality of process concerns. Mediation work tends to attract people who genuinely care about helping others and resolving conflicts.

Nonetheless, the law is in place, with the legislature selecting the California State Bar to oversee the new certification program. The State Bar appointed an ADR Certification Working Group tasked with making recommendations for a comprehensive framework of certification, including qualification requirements, a tiered certification structure, and program administration.

Composed of 21 members with a variety of experience and expertise in mediation, arbitration, and program administration, as well as State Bar staff, the Working Group conducts monthly public meetings. Designed to be representative of stakeholders in the field, the Working Group’s first several meetings demonstrated an atmosphere of collaboration, collegial debate, and a thoughtful capacity to represent the field’s interests with care. Sessions are currently scheduled through December 2025, and recordings are available online. The public may sign up for meeting updates and find more information at: https://www.calbar.ca.gov/About-Us/Who-We-Are/Committees/Alternative-Dispute-Resolution-Certification-Working-Group. Additionally, smaller Subgroups provide recommendations on specific topics. So far, the Working Group has provided initial recommendations on Baseline Qualifications for Mediators and Arbitrators, and Complaint Procedures.

At the August meeting, the Working Group was presented with Baseline Mediator Certification Subgroup’s proposed minimum qualifications for certification at the bottom “tier.” The Subgroup recommended three major categories for certification: (1) Training, (2) experience, and (3) reflective practice groups. The Subgroup also made recommendations on Ethical Standards to govern certified mediators.

Training Recommendations

Mediators would have to receive at least 40 hours of basic qualifying mediation training, with at least 25 of those hours from a single comprehensive training covering certain essential topics and including role playing simulations. Mediators who received their basic training more than two years ago would be required to have 8 hours of continuing mediation training in the past two years to show ongoing education in the field (similar to attorney CLEs).

Longtime mediator members strongly objected to the basic training requirement, believing experience alone should suffice; but Working Group members, especially those with experience teaching trainings, argued in favor of a standardized baseline as a way of ensuring minimum competence across the board – as would be expected by the general public. Some members also made a compelling argument that participating in mediations as an advocate or judging cases from the bench do not equate to the development of skills and understanding of mediation values and ethics that one learns during a comprehensive mediator training.

As a compromise for “experienced practitioners” who have never received 40 hours of mediation training but have been mediating for many years, the Subgroup recommended a temporary option for those mediators to be grandfathered into the new program without requiring a 40-hour training. This option would be allowed only during first three years of the program’s implementation; thereafter, all mediators will be required to take 40 hours of training. “Experienced practitioners” would still be required to have eight hours of continuing mediation training in the past two years. For renewal, only four hours of continuing mediation training is required annually for all mediators.

Experience Recommendations

Mediators would have to attest to having mediated at least six qualifying mediations in the past two years. “Experienced practitioners” being certified under the temporary option must have mediated at least five mediations during each of the past five years as evidence of a higher level of experience. For renewal, only four mediations in the past two years would be required; additionally, a requirement of 12 hours of mediation-related activities would be allowed for those teaching or training in mediation (allows flexibility to count those types of activities as experience instead).

As a result of robust discussions in previous meetings, “qualifying mediation” for purposes of certification and recertification would be defined as (1) including at least two hours of mediator facilitation (in one or multiple sessions) beginning when the mediator agrees to mediate the dispute and ending when the mediator or all parties state that the mediation has ended; (2) allows the mediator to observe or otherwise communicate with the participants in real time; and (3) includes a joint session. The final point was strongly opposed by a number Working Group members who believed this requirement would be controversial for several reasons, including mediators who do not use joint sessions as a matter of practice, cases where joint session would be inappropriate due to the type of case, or client request. A significant portion of the Working Group agreed with the Subgroup that being able to facilitate constructive dialogue in a joint session was an essential mediator skill. After a fairly close vote, the joint session requirement was removed from the definition, and shifted to one of the key training categories as a compromise.

Reflective Practice Group Recommendations

The Subgroup recommended at least three hours of peer feedback or participation in a reflective practice group within the past year; this would apply to all mediators and would be the same for certification or recertification. This requirement was proposed to ensure mediators are engaging with interactive conversations about their practices and ethical challenges on an ongoing basis. Creating meaningful spaces for in depth analysis, constructive feedback, and creative problem solving can be lacking in an industry where mediators can easily become siloed – partially due to California’s strong confidentiality laws. During discussion, Working Group members expressed concerns about confidentiality and lack of genuine participation and ultimately voted to remove this requirement entirely.

Lastly, the Subgroup recommended that mediators be provided an option of “inactive status” for up to two years, which would exempt them from renewal requirements during that time and give them a year to complete renewal requirements after their return to active status.

Key to the Subgroup’s rationale in creating these three categories was the need for baseline competencies to ensure the public can rely on a minimum standard for certified mediators, without enacting stringent standards that would exclude qualified individuals practicing in a wide variety of practice areas or imposing excessive burdens on mediation professionals. Importantly, BP 6173 states that the “levels or tiers do not reflect an assessment of the quality of a firm, provider, or practitioner.” (BP 6173 (b)(2)(B)) The Working Group and Subgroup struggled with balancing the plain language of the statute with the perception of what certification will mean to the public, but ultimately joined with State Bar staff’s view that training and experience requirements were essential. What the “tiers” mean has yet to be addressed.

Ethical Standards

The Subgroup largely based its recommendations on Rules of Conduct for Mediators in Court-Connected Mediation Programs (California Rules of Court, 3.850–3.860), updating the rules to reflect non-court connected mediations. A major subject of discussion was disclosures, with some members suggesting more strict disclosure requirements in alignment with Senator Umberg’s stated goals of transparency, and others concerned about confidentiality. Other concerns centered around managing cases with large or shifting parties, the burden of record keeping and time limits, and logistics for big providers or court programs. The standards were approved for public comment with no changes.

Ultimately, the Working Group approved a pared down version of the Subgroup’s recommendations for public comment, including only training and experience requirements for certification and recertification. The State Bar will set up formal public comment procedures on these initial recommendations before the Working Group makes its final recommendations, so all are encouraged to participate and make their voice heard. In the meantime, the public is welcome to join the full Working Group meetings, and formal comments may be submitted to adrwg@calbar.ca.gov at any time.

The next round of topics to be considered by the Working Group are Provider Organizations, Program Administration, and Tiers, so stayed tuned to this column for more updates.