The laudable, if not elusive, goal of mediator certification is a topic of debate almost as old as the profession itself. The best practices, ethical standards, certification criteria, and enforcement mechanisms of a certification program have historically failed to gain necessary traction, owing in part to the patchwork nature of our profession. Identifying, let alone codifying, agreeable standards in an industry comprising mediators from diverse backgrounds and focusing on commercial, family, community, or political disputes belies the valiant but unsuccessful attempts to bring added quality and accountability to our profession.
The ADR/Mediator Certification Program in California
Now comes California Business and Professions Code Section 6173, passed in 2024, which directs that “The State Bar shall create a program to certify alternative dispute resolution firms, providers, or practitioners.” (Sec. 6173 (a)(1).
This mandate includes that the State Bar will establish and oversee the new Alternative Dispute Resolution (ADR) Certification Program, including program administration, procedures and criteria for certifying mediators and other dispute resolution professionals; certification denial, revocation, and renewal; and fee structures. Certification will be offered to mediators, both members and non-members of the State Bar, broadening access and increasing diversity within the profession.
While the specifics are still being discussed, mediators seeking certification will most likely have to fulfill training and experience requirements, provide a mechanism for complaint and remedy procedures, and undertake continuing education to maintain certification.
It’s against the backdrop of this legislative directive that I recently sat down to interview Ms. Dana Curtis, an ADR industry expert and Chairperson of the program’s Baseline Mediation Subgroup, whose charge is to make recommendations to the Working Group responsible for implementation of mediator certification requirements in California. What follows is a summary of our conversation as it relates to specific recommendations contemplated by the Subgroup and open questions for future consideration.
What Should Mediators Know About the Mediator Certification in California Program?
A Voluntary Program
Participation in the certification program, will be voluntary, not mandatory. Mediators who are not certified may continue to practice as they currently do.
The goal of creating a certification mechanism is to promote public confidence and consumer protection in ADR services and to signal that a mediator meets uniform, transparent qualifications. Persons applying for certification will be required to pay a fee.
State Bar Membership Not Required
The new program created under this section does not require a firm, provider, or practitioner to be a licensee of the State Bar to be certified. (Sec. 6173(a)(2). Ms. Curtis commented on the Subgroup’s efforts to cast a broad net to encourage widespread participation. It remains to be seen how those “outside” of the legal profession will view this certification and if they consider it a valid credential. The success of the program will depend on how effectively it can demonstrate its value to a broad range of stakeholders, including clients, attorneys, and other participants in the dispute resolution process.
For potential users of mediation services, the certification could serve as an indicator of a mediator’s ethical standards, and commitment to professional development. It may help parties feel more confident in selecting a certified mediator to assist in resolving conflicts, thereby potentially reducing reliance on litigation and promoting alternative dispute resolution method.
Mediation Skills Training
Perhaps the core recommendation of the Subgroup concerns the requirement of baseline mediation skills training as a prerequisite for mediation certification. While still finalizing specific recommendations, the subgroup has given significant consideration to a training requirement that reflects appropriate duration and content. They are carefully crafting these requirements to ensure both quality and relevance in the certification process.
The discussion appears to now focus on a twenty-five-hour basic mediation training course completed within the past two years that includes specific curriculum requirements. These curriculum requirements may include training in the following areas of practice:
- Conflict, communication, and mediation theory;
- Stages of the mediation process;
- Mediation and effective communication skills and techniques;
- Mediation ethics;
- Laws governing mediation, including confidentiality, and
- Observation of mediation demonstrations and participation in role play.
Designing the curriculum to address key competencies and ensure fairness in the certification process is essential.
As an experienced mediation trainer, Ms. Curtis is keenly aware of the importance of the experiential aspect of mediation training and welcomes its inclusion in any certification process.
For those experienced mediators looking to comply with training requirements, the Subgroup looks to recommend a separate path toward certification, respecting past mediation experience. More specifically, the Subgroup suggests that any mediator who has both completed twenty-five mediations and at least seven or eight hours of continuing or advanced training within the past two years would similarly qualify for certification.
One obvious discussion that flows from any mediation training requirement is who will provide the training. Currently, the State Bar recognizes and certifies training organizations that satisfy certain prerequisites including having qualified instructors with credentials, topic area expertise, relevant, substantive content and written materials, and appropriate administrative systems.
However, Section 6173 and the Subgroup have not addressed this question directly. It should be apparent to all that this certification process has the potential to spawn a cottage industry of trainers who, without certification in their own right, could undermine the intent if not the quality of the certification process itself. Regardless of how it is addressed, only through the assistance of competent training professionals can the goal of enhancing mediation quality be achieved.
Ethical Standards
In a largely unregulated profession that has too often demonstrated a blind spot for ethical moments in mediation, it is a welcome requirement of certification that firms, providers, or practitioners must comply with ethical standards. More specifically, under Section 6173, mediators seeking certification under this program’s guidelines will be required to comply with ethical standards that are equivalent to the Rules of Conduct for Mediators in Court-Connected Mediation Programs provided in Rules 3.850 to 3.860 of the California Rules of Court. (Section 6173(B)). These standards apply to a variety of cases, including general civil cases, as outlined in the California Rules of Court.
Many ADR providers promulgate their own ethical standards. Yet, by their very nature, the devil is in the details in any discussion of what constitutes ethical behavior in a specific setting. People often agree on the broad principles of ethical rules, but the conversation quickly becomes more nuanced when they consider specific examples of conduct.
Regardless, the inclusion of ethical standards as a benchmark of certification is a critical step in any program seeking to enhance the profession.
Complaint Procedures
As a mechanism for enhancing accountability in the mediation profession, Section 6173 requires that the firm, provider, or practitioner have procedures in place for persons to make complaints regarding the failure of a mediator to comply with standards articulated in this section. More specifically, “those complaint procedures shall be substantially similar to the complaint procedures specified in Article 3, commencing with Rule 3.865 of Chapter 3 of Division 8 of Title 3 of the California Rules of Court.” Section 6173(C)).
Having a complaint process in place is only the first step toward accountability. Questions remain for the Subgroup to consider, including who will be responsible for investigating complaints and what investigative powers they will possess. Ms. Curtis identified the unique challenges posed in investigating complaints, given that our professional activities often take place behind closed doors and in confidential conversations.
Inclusivity
As has already been observed, the intent behind Section 6173 is to provide an avenue for standardized certification for State Bar members and non-members alike. Even the fees proposed are intended not for revenue generation, but to fund program costs exclusively. This further reflects the Subgroup’s commitment to ensuring that fee requirements alone don’t become a barrier to entry into the profession.
In keeping with that intent, the Subgroup also chose not to require specific personal or professional background criteria as a condition for baseline certification. Their goal is to raise the bar for mediator quality and accountability without excluding individuals from diverse backgrounds or those serving different communities and dispute types. Balancing standards with flexibility will be key to fostering a certification program that supports the growth and development of the mediation profession across California.
Next steps
Many questions remain for the Subgroup to address in its valiant attempt to tackle the longstanding challenge of mediator certification. While Ms. Curtis was quick to acknowledge certain limitations in the Subgroup’s charge, it is clear the Subgroup will report its recommendations, including dissenting opinions, to the full Working Group later this Summer, moving one giant step closer to implementing the legislative intent of Section 6173.
How to Prepare for the Mediator Certification in California Program?
While the ADR Certification Program is voluntary, it may become a practical necessity for mediators, especially given its backing by the California Bar Association. Mediators at all stages of their careers who envision becoming certified can begin taking steps now to meet the program’s expected standards.
Considerations for New or Future Mediators
For a new mediator in California contemplating certification, now is a good time to begin preparing. Consider the following to better prepare for the process:
- Complete at least a basic mediation training course (25-40 hours) given by a reputable provider whose program will align with the future certification requirements.
- Gain real-world experience through community mediation services or court observation.
- Begin documenting case experience and training hours now.
Considerations for Current Practicing Mediators
The ADR Certification Program requirements being developed will take into consideration the training and experience already acquired by current practicing mediators. Some things that may impact current practicing mediators are:
- Current practitioners may face new standards for experience verification, continuing education, or ethics compliance. Keep good records of these things.
- Practicing mediators may need to adopt a complaint resolution mechanism as a condition of certification.
Understand the Ethical Standards for Mediators
All mediators should familiarize themselves with California’s Rules of Court for Mediators, specifically Rules 3.850–3.860 (the Ethical standards for court-connected mediators) that mediators will need to comply with to be certified.
Understanding these now will help you comply later.
Conclusion
I first explored the challenges of mediator certification in my 2020 blog, Certified Mediator? The Sparrow and the Peacock, republished last year. In that blog, I lamented the absence of deeper education and training as a prerequisite for mediator certification.
While most mediators uphold high ethical standards, gaps in training can lead to serious missteps. For instance, a colleague once told me they didn’t believe it necessary to disclose prior relationships with attorneys, citing the voluntary nature of mediation. In a recent, more troubling case, I took over a mediation where my predecessor had not only imposed a mediator’s proposal over party objections but falsely claimed to have raised millions toward settlement. These incidents highlight the need for more comprehensive training and a structured certification process.
Today, I applaud the efforts of Ms. Curtis and other members of the Subgroup who are tackling the difficult questions posed by bringing certification to a still-nascent and nuanced mediation profession. While it has sometimes been said that “no one is safe when the legislature is in session”, this current effort to implement the legislative intent behind Section 6173 by those possessing professional knowledge and expertise is both remarkable and commendable.
In the words of Robert Frost, we still have “miles to go before we sleep.” But these critical first steps in developing a mediator certification program in California reflect a milestone moment in our profession.
Frequently Asked Questions
Is certification through the California State Bar ADR Program mandatory for mediators in California?
No. The program established under California Business & Professions Code § 6173 is voluntary. Mediators may continue to practice without certification, but certification could become a valuable credential for consumer confidence and marketing.
If I already have extensive mediation experience and training, do I need to complete a new program to qualify?
Likely not a full new program. Current working proposals contemplate a pathway for experienced mediators that recognizes documented case experience and recent continuing training. Final rules will clarify specifics, so begin organizing your training logs and case records now.
What key requirements should mediators prepare for under the upcoming California Bar ADR/Mediation certification program?
While final criteria are pending, mediators should be ready to document:
- Foundational training covering skills, ethics, and confidentiality
- Adherence to ethical standards consistent with California’s mediator rules.
- A process for handling and resolving complaints.
- Ongoing record-keeping of training, experience, and (if adopted) continuing education.
Getting structured training and logged experience now will position you well once applications open.
