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.
Public Comments Requested
The Working Group’s initial recommendations are now out for a 60-day public comment period; the deadline to respond is April 28, 2026. There are several topics where feedback is specifically requested, and the public is encouraged to comment on any part of the recommendations. It is essential for mediators and any dispute resolution professionals to make their voices heard on important issues before the Working Group reconvenes in May and June 2026 to finalize recommendations to the State Bar.
Preliminary Report and Recommendations can be found at: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/cc/ADR-WG-Report-and-Recommendations-with-Attachments.pdf
Online Public Comment Forms
- Group 1 - Arbitrators and Mediators: Appendices A, B, D, F, and G (Recommendations concerning baseline certification, certification tiers, ethical standards, and administrative requirements for mediators)
- Group 2 - Provider Organization: Appendices C, E, and H (Recommendations concerning baseline certification, certification tiers, ethical standards, and administrative requirements for Provider Organizations)
- Group 3 - Administration and Rules: Appendices I, J, K, L, and M (Recommendations concerning administration of the certification and proposed State Bar Rules, including rules for procedures to address complaints about certified mediators and provider organizations)
The Working Group held two meetings in January and one in February of 2026 to finalize its initial recommendations. Three main topics were addressed: 1) Provider organizations, 2) finalizing the Tiers structure, and 3) final updates on complaint procedures.
Provider Organizations
The Subgroup for Provider Organizations presented several items to the full Working Group: Tier Criteria, Baseline Eligibility/Qualifications Standards, Program Administration Requirements, and Ethical Standards.
Provider Organization Tiers Criteria: Approved unanimously as a whole, the criteria include required and elective items for the varying tiers, similar to the general Tiers structure, where Providers can satisfy items to qualify for higher tiers. Criteria areas cover compliance with ethics standards, training requirements, party and attorney surveys, internal complaint procedures, publicly available practitioner biographies, and staff training and certification in ADR processes.
Provider Organization Baseline Eligibility/Qualifications Standards: Under the approved recommendations, a Provider is defined as an organization that offers ADR services of two or more practitioners that administers at least two times the minimum number of mediations in CA as required for individual practitioner certification. They must be in business for at least two years, disclose all owners or investors publicly, be registered with the Secretary of State, maintain a website, insurance, and a designated point of contact with the State Bar who has received ethical training and is familiar with the Certification Program and its requirements. Providers must also require panelists to follow ethical standards and have procedures to remedy any failures to comply with those ethical standards.
Provider Organization Program Administration Requirements: The Working Group approved requirements in alignment with the Baseline Eligibility requirements. Provider Organizations must designate a contact person familiar with ADR processes and State Bar standards. Applications will be made every three years, similar to individuals, and must disclose all equity owners. The Subgroup’s initial recommendation excluded affiliated practitioners, but the Group removed them based on concern about possible “hiding” of owners by labelling them as “practitioners.” The Group approved guidelines for the fee structure based on the number of affiliated (CA-based) practitioners, revenue, and organizational characteristics (like nonprofit vs. profit). The State Bar will ultimately set the fees for both provider organizations and individual practitioners based on its expected costs to administer the certification program.
With this item appearing in both the Baseline Eligibility and Program Administration recommendations, the Group debated how to define who a “California-based panelist” is on a Provider’s roster; after considering factors such as whether the definition should be based on panelists or parties, geographical location, and the prevalence of virtual cases, the Group ultimately failed to pass any amended language. The original version was put back into the proposed recommendation with hopes to elicit public comments for further direction: “California-based panelist” means an ADR practitioner on a Provider Organization’s panel or roster who resides or has a place of business in California.
Provider Organization Ethical Standards: The Group approved Standards to apply to Providers when cases are “conducted in CA or governed by CA law,” and Providers “must take reasonable steps to maximize the quality of ADR services provided by its affiliated practitioners.” Providers must require panelists adhere to ethical rules, but importantly, a Provider must respect panelists’ professional judgment and cannot dictate acceptance of cases. The Standards also include requirements of fairness and impartiality, accessibility of services, truthfulness in marketing, disclosure of business and financial interests, and protection of confidentiality.
Two additional standards were subject to extended discussion. The Working Group debated how “ADR” should be defined, with the Subgroup proposing Business and Profession Code 6173’s definition for consistency with the certification program’s authorizing statute (also considering possible future statutory amendments), while State Bar Staff proposed two separate descriptions with language reflecting a more generally accepted definition within the field (which would not require looking up a statute). The Group ultimately voted in favor of the statute definition.
Tiers
The Working Group finalized recommendations for the Tier structure concerning a few remaining areas. As electives for Tiers 2 and 3, the Group approved presenting or training in dispute resolution, one-on-one mentoring (as long as it is structured and interactive, not just observation), and leadership in a professional membership organization that encourages ethics and professionalism. The Group was split on an elective regarding disclosing the number of cases mediated, but it ultimately passed with significant abstentions and “no” votes. Lastly, on a much-discussed topic regarding disclosures about declining new business with the parties of a pending matter, the Group hesitantly approved the items as an elective at Tier 2 and required for Tier 3, hoping that public comment would help further clarify the issue since no consensus could be reached.
Complaint Procedures
Offline, Subgroup members continued to discuss a possible consensus recommendation regarding Court ADR programs under the new rules and made large strides toward a unified approach. While two separate courts issued written public comments arguing for court ADR program exclusion, the Working Group ultimately voted for the different approaches to go out for general public comment with the other initial recommendations to obtain more robust public input before issuing a formal recommendation.
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 information and how to sign up for meeting information is 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 May and June 2026 when meetings resume after the public comment period, so follow this column for further updates.