Mediation Aspects of SB940 in California: Moving Toward Final Recommendations on Mediator Certification

Welcome back to Mediation Aspects of SB940 in California, a series that provides 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 standards 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 for the Working Group’s mediation-related recommendations as the framework is developed. 

During the May, June, and July 2026 meetings, the Working Group reconvened to begin finalizing recommendations following the two-month public comment period. Comments were robust, and the Group focused its attention on items with the most disagreement.

Appendix K - Certification Program Rules

This was approved with a few additional changes.

Regarding Rule 3.1100, the Group voted to define “ADR” by reference to the authorizing statute (Business and Professions Code §6173), as opposed to wording based on the CA Rules of Court (proposed by State Bar Staff). While this choice requires the public to reference a statute, this choice allows more seamless integration if the statute definition is updated at a later date.

Regarding Rule 3.1110 on processing applications, the Group voted to remove the requirement of the State Bar to respond within 90 days because of the uncertainty of the expected volume of applications. Relatedly, the Group reaffirmed the recommendation that the recertification period be three years, although there was discussion of a longer period.

There was significant discussion around Rule 3.1109, which states that any records submitted become property of the State Bar, with several Members concerned about confidentiality. The Group ultimately amended the Rule explicitly requiring the State Bar to preserve confidentiality.

Appendix L - Complaint Procedure Rules

The appendix was approved with a few edits.

Rule 3.1121(f), addressing who can serve on a complaint committee, was amended to reflect concerns about impartiality and conflicts of interest. The Working Group added language prohibiting committee members from having a “material” relationship with the practitioner, provider, subject of the complaint, or complainant themselves that might reasonably raise a question about impartiality. Given the interconnected nature of the mediation and dispute resolution community across California, it could be difficult to convene a committee that has no connection whatsoever to the mediator against whom the complaint is being made, so this update provides some latitude while still protecting against bias.

Under Rule 3.1124(B), receipt of complaints, Staff proposed language allowing the Complaint Coordinator to open an investigation based on an inquiry even if there is no formal written complaint. The Group rejected this proposal due to concerns about due process and taking away the complainant’s power to decide about moving forward with their own inquiry.

Rule 3.1126(D), authorizing disclosures for complaints, received a high volume of public comments around confidentiality. After significant discussion, the Group adopted revised language expressly limiting disclosure to the practitioner or provider organization’s name, the action taken, and the general basis of the action.

Regarding notification of complaint procedures, Rule 3.1128, the Group approved additional language requiring practitioners and providers to furnish information about how to make complaints to the State Bar on their website, in the fee agreement, or otherwise in writing at the outset of the process. Making it a standard part of initial paperwork should increase transparency and build trust with the public by making the information more accessible, while balancing concerns that bringing up the topic of complaints at the start of a mediation process could have a negative impact on the perception of a mediator. 

Appendix M - Complaints Regarding Certified Practitioners in Court Programs

Considering public and court comments, the Working Group spent significant time balancing consumer protection and court independence, ultimately approving amendments blending the two prior proposals. Members representing the Courts were especially helpful in bridging final gaps on this hot topic and drafting the language in real time. In short:

1. Certified neutrals in judicially supervised, court-connected ADR processes satisfy the statutory complaint requirement, and complainants arising out of those programs should be directed to the supervising court.
2. “Court-connected ADR processes that are judicially supervised” means ADR processes facilitated by neutrals recommended, selected, appointed, or compensated by a court, and who are subject to a confidential complaint process supervised by a judicial officer that may address ethical violations and impose remedies.
3. Practitioners are required to inform the State Bar of any court-connected complaints against them, and the outcome, within seven days, including the complainant's name, contact information, and the general nature of the complaint.
4. In complaints where a neutral is acting as part of a court program, the State Bar will direct complainants to report their concern to the court.
5. The State Bar shall defer investigation and action until a court-related complaint is resolved by that court but retains discretion in cases where the State Bar determines that deferring will unduly impede its duty to protect the public from misconduct.
6. The State Bar may consider complaint-related information provided by a court in making its own determinations about what actions to take regarding a neutral’s certification status.

The Working Group will continue meetings in August and likely September to address other issues regarding Day-of-Court mediators, Ethical Standards, Provider Organizations, Tiers, and newly proposed SB 574 language that would impact the complaints program and mediation confidentiality. Stay tuned.

The public may watch prior Working Group meetings via the CalBarCA YouTube channel or submit comments to adrwg@calbar.ca.gov. More info is available at: https://www.calbar.ca.gov/About-Us/Who-We-Are/Committees/Alternative-Dispute-Resolution-Certification-Working-Group.