Welcome back to Mediation Aspects of SB940 in California, a series providing updates on Business and Professions Code 6173 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 series aims 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 December 2025 meeting, the Working Group addressed two topics: 1) The Tiers structure, and 2) updates on complaint procedures.
Tiers
Under law, the new certification program must include different tiers for certification: (A) Higher tiers demonstrate a higher level of commitment to accountability and consumer protection; (B) tiers do not reflect an assessment of the quality; and (C) tiers only reference standards of conduct.
Given these restrictions, the Tiers Subgroup limited its recommendations to mediators and arbitrators, suggesting a total of three tier levels. The Subgroup created a “menu” structure of 26 criteria across eight categories containing either required or elective items which allow practitioners to certify into those tiers. Tier 1 is the baseline, with all criteria required, and equates to the baseline certification requirements previously approved by the Working Group. Tiers 2 and 3 can be opted into by fulfilling all required criteria and a minimum number of elective criteria (five for Tier 2, and an additional 4 for Tier 3).
During the November and December meetings, the Working Group approved almost all Subgroup recommendations; key issues underlying the proposal were the presumed public perception of what the tiers mean, and the Subgroup’s desire to avoid the assumption that higher tiers equate to “better” mediators.
The Tier structure encompasses categories on experience, professional development, ethics, maintaining participant records, disclosure and recusal, transparency, and advancing the field. Some examples of criteria are additional training, membership in a professional ADR organization, participating in reflective practice groups, receiving structured one-on-one mentoring, disclosure of prior relationships, and disclosing an approximate number of mediations conducted.
Two criteria were not approved at this time. After a long discussion on the requirement against accepting new business with parties in an ongoing matter, the criterion was sent back to the Subgroup for a new recommendation. The Working Group expressed ethical concerns, seeing possible gamesmanship by parties or attorneys, and potential adverse effects on a practitioner’s business.
Additionally, the criteria requiring disclosure on how to file mediator complaints at the outset of the case was not recommended, with Working Group members apprehensive about detriment to the mediator-party relationship at a critical stage of mediation. The Subgroup intends to propose another version of the criteria.
Lastly, the “advancing the field” criterion were not voted on due to time constraints and will be addressed at a future meeting. These elective items concern teaching, conducting professional mentoring, and leadership in professional membership organizations.
Complaint Procedures
Conversation from the November meeting continued on how to address issues when a complaint is lodged against a State Bar-certified mediator in a court-connected ADR program, but despite efforts by Working Group members offline, no consensus has been reached between the approaches. To briefly reiterate, two members from court programs propose a rule exempting complaints in this specific context to avoid running afoul of existing state and federal court rules, while State Bar staff propose courts become a formal complaint provider in substantial similarity to State Bar rules.
Since November, the State Bar Office of General Counsel (OGC) provided guidance on this topic supporting State Bar staff’s position. OGC interprets the intent of the Business and Professions Code section 6173(b)(1)(C) as prohibiting exemption of court-connected complaints, because of the State Bar’s need to accept complaints about certified neutrals, regardless of where they arise. OGC does recognize that court rules may limit the State Bar’s ability to investigate complaints and thus encourages courts to notify the State Bar of any complaints and subsequent results of internal court complaint processes.
Given the consequential nature of these issues, some Working Group members suggested it was beyond the Group’s scope of authority to decide this question; instead, the Legislature should clarify intent to avoid any possible legal escalation. No vote was taken to recommend an approach at this time, and conversation will continue between meetings in hopes of creating a viable recommendation for vote.
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. The Working Group is set to finalize initial recommendations in early 2026, so follow 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 (formerly Hastings) 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, 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.