Welcome back to Mediation Aspects of SB940 in California, a series providing updates on Business and Professions Code 6173 (originally SB 940) which created a voluntary Certification Program for mediators and other alternative dispute resolution (ADR) professionals in California. The new program “aims to promote adherence to ethical standard for ADR services and establish consumer protection mechanisms.” This column seeks to shed light on the California State Bar ADR Working Group’s internal processes and provide context to the Working Group’s mediation-related recommendations as the framework is developed.
During the October and November 2025 meetings, the Working Group addressed two main topics: 1) Administrative procedures, and 2) complaint procedures.
Administrative Procedures: The Working Group passed the Program Administration Subgroup’s recommendations with very few alterations at the October meeting. State Bar staff were especially receptive to guidance on managing the day-to-day tasks of the Certification Program. The Subgroup contained members with significant experience running ADR programs, so it recommended that State Bar staff administering the Program have training and/or experience in ADR to ensure a nuanced understanding of the processes and services which it regulates. Other key recommendations:
Certification Application: Separate initial and recertification applications for each type of ADR (only mediation and arbitration at this time), with general certification only; no specializations (i.e., divorce, employment, etc.) due to complexity of defining and overseeing specializations. Recertification should be staggered every three years to balance out State Bar staff workload.
- Applications must include: Attestation of completion of baseline requirements; familiarity and compliance with ethical standards; and disclosure of professional licenses with status (current, revoked, suspended, disciplined).
- No livescan fingerprinting or background checks.
- Applicants and certified practitioners and provider organizations have an ongoing duty to comply with Program rules and relevant standards, and a duty to promptly disclose any information that might affect eligibility for certification.
- Applications to be verified under penalty of perjury.
- The review process will include an explanation if an application is incomplete or inadequate, allowing time to cure deficiencies.
- A three-month timeframe for approval or denial of application, and applicants may request review of a denial.
- Possible reasons for denial include a failure to meet or maintain certification requirements; failure to pay fees; failure to timely renew; a verified violation of ethical standards; prior discipline; or verified lack of candor, including any material omissions, material false representations, or misstatements in application.
Fees: The annual and renewal fees for the certification should be the same for arbitrators and mediators, with lower fees for practitioners performing only pro bono work. The Subgroup felt a lower fee option was important to help prevent the loss of practitioners in volunteer programs.
Program Administration Generally: The State Bar should create an informal ADR advisory panel to assist the State Bar with program implementation and expand expertise in this area, this panel would consist of volunteers from a variety of areas and backgrounds.
- The State Bar website should include the name, tier level, and any revocation or suspension of certified practitioners and provider organizations.
- The State Bar may conduct audits to verify compliance with Program requirements.
Public Comment Requests: Public comment is specifically requested on two issues related to program administration. First, whether a majority of the initial required trainings for baseline certification (not required continuing education) should be live, in person, or online, with discussion and simulations. The Working Group sees valuable skill development opportunities with more interactive trainings but also understands the importance of accessibility via virtual and asynchronous formats. This certification requirement at the lowest baseline level was not previously defined with such specificity.
Second, comments are sought on whether certified for-profit provider organizations should pay a standard amount, or the sum of all fees which would be due from individual panelists, with full credit for any panelist that pays their own individual certification fee. Some certified individual practitioners will be panelists with multiple providers, creating complexity. The Working Group has not yet made a recommendation on required certification of individual panelists within an organization; whether it will be all, only a percentage, or just the organization itself, will be taken up by the Provider Organizations Subgroup at a future meeting.
Complaint Procedures: While Business and Professions Code 6173 only requires that the “firm, provider, or practitioner has procedures in place for persons to make complaints,” the original April 2025 recommendations by the Complaints and Remedies Subgroup proposed the creation of third party “Complaint Committees” with designated “Complaint Coordinators” to handle alleged violations of standards of conduct by certified practitioners or provider organizations. After an initial review by the coordinator, a formal informal investigation by the Committee may take place, with the possibility of training, reprimand, or decertification for adverse findings. Committees should be composed of a variety of ADR practitioners and may be based in ADR organizations outside of the State Bar, but who appoints committees has not yet been defined by the Working Group. It is also important to note that proposal specifically stated an intent to preserve mediation confidentiality under Evidence Code sections 1115-1128.
During the November meeting, the Working Group revisited this topic due to concerns about impact on court ADR programs, namely, how to balance the State Bar’s interest in overseeing complaints without infringing on the judiciary’s authority. This is a hot topic with strong positions presented by members of the courts and the State Bar; despite numerous attempts to find common ground, no consensus has been reached between the factions.
State Bar staff reiterated a commitment to principles of consumer protection, proposing that courts wishing to be the exclusive body to handle court-connected program complaints must notify the State Bar and agree to follow a complaint procedure that is “substantially similar” to the Certification Program’s rules. As a complaint handler, courts would also be obligated to report complaints and determinations to the State Bar.
Alternatively, two Working Group members proposed that courts with court-connected ADR programs be exempt from the requirements of the State Bar’s complaint procedures under the Certification Program, arguing that the Bar does not have authority over courts to order compliance. Their main points focused on the limited scope of complaints (only arising in a court ADR program where complaint procedures already exist), the existence of strict self-disclosure requirements in the certification rules (making reporting duplicative and unnecessarily burdensome), and importantly, proposed requirements would be in direct violation of existing court rules. In addition, they detailed how new requirements could lead to increased costs on already strained resources, subject individuals to parallel complaint procedures with different potential outcomes, or reduce the number of practitioners willing to serve in court ADR programs. The volunteer program impacts in particular could reduce courts’ ability to provide critical access to justice programs, which would disproportionately impact low-income litigants.
The Working Group will vote on this court exemption issue at the December 2025 meeting, so public comments are encouraged before that time.
The public is welcome to join the live, virtual Working Group meetings, watch prior meetings via the CalBarCA Youtube channel, or submit formal written comments to adrwg@calbar.ca.gov at any time. More info and how to sign up for meeting info available at: https://www.calbar.ca.gov/About-Us/Who-We-Are/Committees/Alternative-Dispute-Resolution-Certification-Working-Group. Two more meetings of the Working Group are scheduled take place in December and January to finalize initial recommendations for public comment, so stayed tuned to this column for further updates.
About the Author
Professor Mattie Robertson is a member of the 2025 California State Bar’s Alternative Dispute Resolution Working Group charged with developing a certification framework for ADR providers and practitioners. Professor Robertson is a dispute resolution professional who has mediated hundreds of cases, and is certified as a mediator, facilitator, and arbitrator. She has mentored other professional mediators and conducted numerous conflict resolution trainings on a variety of topics. Professor Robertson spent a decade working in mediation nonprofits and was Deputy Director of the Center for Negotiation and Dispute Resolution (CNDR) at UC Law San Francisco for over 5 years, serving as Interim Director of the Center in 2022. Professor Robertson currently teaches the Mediation Clinic at UC Law San Francisco (formerly Hastings), supervising students working as mediators in local agencies and courts. She is currently Co-Chair of the Association of American Law Schools (AALS) Clinical ADR Committee; member of the Alameda County Superior Court’s ADR Administration Committee; The Mediation Society; Chabot College’s Administration of Justice Department’s Advisory Board; and a panel mediator for the ADR Program at the US District Court for the Northern District of California. Professor Robertson is a graduate of UC Law San Francisco.