An ongoing series providing updates on SB 940 and the Alternative Dispute Resolution Working Group tasked with developing framework recommendations for the California State Bar’s new voluntary mediator certification program under Business and Professions Code 6173.
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.
At the October 2026 meeting, the Working Group revisited some prior items and finalized its program recommendations, which will now be submitted to the State Bar’s Advisory Board for next steps. This was the final meeting of the Group, which first began its work in February 2025, and the Group has now been officially disbanded.
Update on SB 574: The bill was passed into law and signed by the Governor, updating Business and Professions Code 6173 regarding confidentiality and complaints. Before passage, one final change was made to the statute’s language; the new rules requiring certified mediators to turn over confidential communications because of a complaint were limited to cases where a party is not represented by an attorney. While this would seem to address practitioners’ concerns and afford more consumer protection, unfortunately, the practical impacts may actually impede access to justice for mediation consumers.
This limitation is predicated on an assumption that legal representation is core to the mediation process for public protection, but this is wrong. Mediation provides flexibility and the ability to holistically meet individual party needs, separately from legal processes and the limited remedies courts can provide. The rule may also increase mediation costs because parties may see hiring attorney representation as a prerequisite to mediate. Or worse, they may simply choose not to mediate at all.
Moreover, there are numerous areas of practice where parties are routinely unrepresented by counsel, or where legal representation is not the norm, such as community mediation or family cases. Mediators working in such areas may choose not to become certified to avoid negatively impacting those they serve, since otherwise confidential communications must be shared with the State Bar if there is a complaint.
Certified mediators may be disinclined to accept cases with unrepresented parties, or attorneys with cases against unrepresented parties will not select certified mediators in order to ensure protection of communications. The ultimate impact is less availability of mediators to those who do not have or cannot afford an attorney, a group of people the statute specifically seeks to protect.
Subgroup on SB 574: In response to the enacted statute changes, a new Subgroup was formed to make recommendations to the full Working Group on previously discussed issues impacted by the changes. While Subgroup members echoed other Members’ concerns about the bill’s impact, their main goal was supporting practitioners as best as possible in the current situation. To this end, they created a “Safe Harbor Provision” handout which Certified Mediators could provide to parties with other initial disclosures as a way of explaining the new law. The Group adopted this model document, and it will be included with the final recommendations.
Appendix D, Ethical Standards for Mediators: The Working Group previously left open Standard 5 regarding confidentiality disclosures for further discussion pending the bill. Subgroup Members were initially split on the issue of timing but ultimately recommended flexible language. Mediators must provide participants with an explanation of confidentiality “as soon as practicable but no later than the outset of the first Mediation session.” Staff argued this was ambiguous enough to potentially give rise to complaints, instead suggesting “when the mediator deems it appropriate, but not later than the outset of the first mediation session.” The Group rejected Staff’s proposal.
Appendix L - Complaints and Remedies: At the Subgroup’s suggestion, the Working Group reconsidered this section to make several updates given SB 574 changes. All suggestions were adopted by the Group. Some amendments were simply bringing language in line with the statute’s language, and others were more substantive.
Protected Materials: One significant change suggested by State Bar Staff was to create a definition of “Protected Materials” instead of having to describe confidential information in detail throughout the program recommendations. The following definition was adopted as paragraph (J) of Rule 3.1121:
“Protected Material” means information, records, or communications that is confidential or protected from disclosure by Mediation Confidentiality, Chapter 2 (commencing with Section 1115) of Division 9 of the Evidence Code, the Lawyer-Client Privilege Article 3 (commencing with Section 950) of Chapter 4 of Division 8 of the Evidence Code, the Attorney Work Product doctrine as restated in Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of the Code of Civil Procedure, or any other law.
Notice and Opportunity to Respond: A major area of discussion for the Subgroup was what information should be provided to a practitioner or provider organization against whom a complaint is asserted, and when during that process. Under Rule 3.1124, for complaints not resolved through the informal preliminary review, practitioners or providers must be given notice of the complaint, alleged violation of the applicable standards, and an opportunity to respond. Additionally, after investigation but before any action is taken against a practitioner or provider, the Complaints Coordinator or Committee must provide a copy or summary of the complaint, the recommended action, and provide an opportunity to respond.
Notice of Request for Court Order to Disclose: Under Rule 3.1124, regarding what might be disclosed pursuant to “an order of a court of competent jurisdiction,” the Subgroup recommended language to help ensure that persons and organizations whose “Protected Material” might be disclosed will receive notice and an opportunity to object. This amendment responds to concerns about parties not knowing confidential communications are being disclosed.
A certified practitioner or provider organization, State Bar licensee, or limited liability partnership or law corporation registered with the State Bar that requests a court order requiring the release of Protected Material that was provided, obtained, or created in a Complaint proceeding shall first or concurrently provide notice and a copy of the request to the State Bar, to all holders of any attorney-client privilege or work product protection, and to all participants in any mediation communication that is sought to be released.
Appendix B - Mediator Qualification Requirements: One small change was made to the mediator training requirements for uniformity’s sake, updating all four paths to certification to require at least two hours of ethics training.
Next Steps: State Bar Staff plans to make further edits to the recommendations based on their internal procedures and rules, then present the Working Group’s Final Recommendations to the Advisory Board in February 2027. Working Group members strongly support a final proposal that follows the originally recommended language, so any Staff edits should be annotated as such. A second and final public comment period will follow the Board’s review before the State Bar moves towards program implementation.
The public may watch prior Working Group meetings via the CalBarCA YouTube channel, or submit comments to adrwg@calbar.ca.gov. More information is available at: https://www.calbar.ca.gov/About-Us/Who-We-Are/Committees/Alternative-Dispute-Resolution-Certification-Working-Group.