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 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 to the Working Group’s mediation-related recommendations as the framework is developed.
In August 2026, the Working Group held three meetings to finalize its recommendations for submission to the State Bar’s Advisory Board; however, SB 574 passed in the California State Legislature, extending the process.
A Quick Update On SB 574
California State Senator Tom Umberg, the original author of SB 940, proposed a new bill addressing the use of AI by arbitrators and attorneys; however, later added, without the Working Group members' knowledge, was unrelated language impacting the Certification Program. While the original bill SB 940 did not direct the State Bar to create internal complaints procedures, this new bill enables it. Most concerningly, SB 574 would require mediators to turn over otherwise confidential information and communications related to a complaint, and, after investigation and a decision on the complaint, the State Bar is authorized to publicly disclose information or records concerning complaint proceedings.
Mediators and dispute resolution organizations across the state voiced concerns that this would upend decades of mediation confidentiality protections and eliminate candor in mediations since a single complaint could be enough to force disclosure to investigators. Moreover, Members worried that without further consideration and updates to the bill’s language, these requirements could deter neutrals from becoming certified. Members also voiced concerns that attorney-client privilege and work product could be impacted under the proposed bill. While Working Group Members were unanimously opposed to SB 574, State Bar Staff argued for a public protection need to fully investigate complaints.
SB 574 is currently awaiting signature by the Governor, who has until the end of September 2026 to act, and with strong support in the legislature, a veto seems unlikely. Due to this new development, the Working Group will revisit confidentiality under the Ethical Standards in October, and with enough votes, the Group could also revisit the previously finalized Complaints Procedures. Since SB 574 significantly changes Complaint processes and requirements, the State Bar now lacks the Group’s guidance on the altered program.
Other approved final recommendations of the Working Group are detailed below.
Appendix B
Mediator Qualification Requirements: Approved with one change.
This section had numerous public comments, and beginning with the June meetings, debate centered on the two-hour minimum per “Qualifying Mediation,” with major concerns around ensuring basic competencies in facilitating a mediation process and excluding day-of-court mediators who routinely and effectively resolve cases in shorter time frames. A Subgroup was convened and proposed a separate fourth Certification path for such volunteer mediators. The basic training requirements are the same as other paths, but “Qualifying Mediations” are reduced and replaced with additional shorter mediations, plus requirements for experience in certain areas of practice.
Path 4: Mediators Who Have Primarily Conducted Shorter Mediations
- At least 40 hours of Qualifying Mediation Training within the 2 years prior to applying, including at least 2 hours covering the applicable Ethical Standards of Conduct for Mediators;
- If completed more than 2 years prior to applying for certification, at least 8 hours of Qualifying Continuing Mediation Training within 2 years prior to applying;
- At least 3 Qualifying Mediations and at least 6 additional mediations, each lasting at least one hour, that allow the mediator to observe or otherwise communicate with the participants in real time; AND
- If a mediator’s mediation experience does not include any of the activities listed below, the mediator must become familiar with that mediator activity through mentoring, structured observation with debrief, co-mediation, or supervised practice, within two years prior to applying.
- Pre-Mediation Convening outside of the courthouse
- Preparation for mediation;
- Working with the law/legal principles; and
- Working with represented parties.
Appendix C
Provider Organization Certification Requirements: Approved without significant changes.
Appendix D
Ethical Standards for Mediators: Approved with several changes, except for Standard 5, which is currently pending SB 574’s approval by the Governor.
Similar to the rule for Providers, the Group rejected a Staff proposal for Ethical Standard 2, Applicability, again reaffirming that the mediator’s location itself is determinative of applicability.
Regarding Standard 5, the Group will discuss changes since SB 574 passed in the Legislature, since the bill currently states “Except as required by law, a Mediator must not disclose information revealed in confidence during such separate communications unless authorized to do so by the Participant…” The Group may want to alter this Standard’s language for clarity.
Standard 6 regarding impartiality, conflicts, disclosure, and withdrawal garnered significant discussion on disclosure and record keeping. At the start of the Certification Program, to provide some leeway for mediators who have not been keeping detailed records of case participants, mediators will be required to complete a conflicts check for the past five years only, but this rule will sunset, and eventually mediators will be required to disclose with no time limits to encourage full disclosure and transparency.
In a split vote, the Group passed an amendment for pre-mediation disclosures to further address impartiality concerns. Under Standard 6 (B)(3), the mediator must disclose whether or not they may agree to serve in any professional capacity in an additional matter involving a party/lawyer while the initial mediation is pending. If the mediator either receives an offer or agrees to serve, they must also notify the parties in writing within five days. Some Members argued this requirement could negatively impact a mediator’s business, especially with long-running or multi-party cases, so it remains a requirement only to disclose your practices about accepting new business or not. However, participation in higher Certification Tiers does require non-acceptance of new business during a mediation case’s pendency.
For Standard 9 on Marketing, the Group affirmed the rule that mediators should not solicit new business during a case, but rejected a proposal to add the words “and accept” because mediators may encounter scenarios where they could reasonably accept further work without conflict, i.e., the parties to an ongoing case request a subsequent session.
Appendix E
Provider Organization Ethical Standards: Approved with very minor changes.
Notably, under Ethical Standard 10, Confidentiality, the Group approved a new footnote clarifying that a Provider Organization itself must maintain confidentiality of all matters that it administers, meaning the Rules do not require a Provider to enforce the Rule on its neutrals to do so; the obligation is on the Provider only.
The Group also rejected a Staff proposal for Ethical Standard 2, Applicability, that would have created a carve-out for some non-California cases. In order to prevent creating confusion, the Group retained the previously approved standard that the mediator’s location determines applicability, not where the case is taking place.
Appendix G
Tiers for Mediators: Approved with two minor typographical errors amended.
Appendix H
Tiers for Provider Organizations: Approved without further changes.
Appendix I
Program Administration (General): Approved with one significant change.
Previously, the Subgroup for this recommendation topic had specifically rejected background checks for Certification applicants to avoid discrimination or exclusion of practitioners working in Restorative Justice or other similar areas, whose prior experiences in the criminal justice system are valuable to their work. A proposal was made to require checks based on the assumption that the public would expect background checks similar to attorney licensing requirements. After discussion and compromise, the Group voted to direct the State Bar to explore implementation of an appropriate background check, which includes a review of any convictions, but still giving consideration to the goal of not unduly deterring practitioners from applying for Certification. With no guidance from the Group, the State Bar has complete discretion on how it will assess prior convictions, consider context, or applicability in the practitioner's field.
Appendix J
Program Administration (Provider Organizations): Approved with one amendment updating “California-based panelist” to “California-based practitioner” to be consistent with other changes throughout appendices.
Stay tuned for updates after the October meeting.
The public may watch prior Working Group meetings via the CalBarCA Youtube channel, or submit comments to adrwg@calbar.ca.gov. More info available at: https://www.calbar.ca.gov/About-Us/Who-We-Are/Committees/Alternative-Dispute-Resolution-Certification-Working-Group.