On September 29, 2024, Governor Newsom signed SB 940 into law, creating Business and Professions Code Section 6173. The new law (which takes effect on January 1, 2025) creates a voluntary  Alternative Dispute Resolution Certification Program to be administered by the State Bar.  One need not be a lawyer to apply for certification.   While the new law addresses arbitration and mediation, I will focus on mediation.

The new law does not do much to truly “certify” mediators. It only requires that mediators comply with”… ethical standards equivalent to the Rules of Conduct for Mediators in Court-Connected Mediation Programs for General Civil Cases…” set out in California Rules of Court   Rules 3.850 to 3.860. While those rules mirror much contained in the Model Standards of Conduct for Mediators, they are not as complete as the Model Standards and also contain requirements not found in the Model Standards.

Notably, the statute, as written, does not mandate any actual mediation experience. The only requirement is the agreement to comply with ethical standards equivalent to those set out in the Rules of Court, a vague term that leaves much to interpretation.

Moreover, the ADR provider must implement an in-house quality control procedure to investigate and address alleged failures to comply with the Rules of Court. However, this mechanism, which is not overseen by the State Bar or a third party, could easily be manipulated, resembling a case of the fox guarding the hen house.

The statute provides for three different levels of certification. Still, the new law notes that these levels “…do not reflect an assessment of the quality of a firm, provider or practitioner”  and that the certification level only references the requirement to abide by the equivalent of the Rules of Court mentioned above.

Finally, but significantly, the State Bar may charge a fee for the certification to cover the costs of administering the program. However, as the State Bar has difficulty administering its current programs, I question its ability to administer this new program in terms of staffing and resources. While the law does take effect on January 1, 2025, I wonder how long it will take the State Bar to roll out this program and have it up and running.

From the above, and unless the State Bar adds many more requirements such as hours of training, number of mediations observed and conducted,  disciplinary record, if any, work experience, education, background checks, references,  etc., this “certification” will provide a false sense of competency and experience of the mediator to the users of mediation. The certification does not guarantee that the mediator knows what they are doing as explicitly disclaimed; the statute explicitly states that the level of certification does not reflect the quality of the mediator. This underscores the need for additional requirements to ensure that the applicant meets the required level of achievement  that “certification” denotes

The legislative history fails to provide the impetus for this bill. While “certification” is laudable and an excellent idea, this new law is not how to do it. It will not achieve its purpose of providing  “certification” to only those mediators with the competency and experience to merit the designation.

… Just something to think about.

 

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