California’s Ethical Standards for Mediators

PART 1. Rules of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases


Title V, Special Rules for Trial Courts—Division III, Alternative Dispute Resolution Rules for Civil Cases—Chapter 4, General Rules Relating to Mediation of Civil Cases—Part 1, Rules of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases, adopted effective January 1, 2003.


Rule 1620. Purpose and function



(a) The rules in this part establish the minimum standards of conduct for mediators in court-connected mediation programs for general civil cases. These rules are intended to guide the conduct of mediators in these programs, to inform and protect participants in these mediation programs, and to promote public confidence in the mediation process and the courts. For mediation to be effective there must be broad public confidence in the integrity and fairness of the process. Mediators in court-connected programs are responsible to the parties, the public, and the courts for conducting themselves in a manner that merits that confidence.



(b) These rules are not intended to:



(1) Establish a ceiling on what is considered good practice in mediation or discourage efforts by courts, mediators, or others to educate mediators about best practices;



(2) Create a basis for challenging a settlement agreement reached in connection with mediation; or



(3) Create a basis for a civil cause of action against a mediator.



Rule 1620 adopted effective January 1, 2003.



Drafter’s Notes


2002—New rules 1620–1620.9 establish minimum standards of conduct for mediators in court-connected mediation programs for civil cases, and rule 1622 requires that courts establish procedures for handling complaints concerning mediators who are on their lists or whom they recommend, select, appoint, or compensate.



Rule 1620.1. Application



(a) The rules in this part apply to mediations in which a mediator:



(1) Has agreed to be included on a superior court’s list or panel of mediators for general civil cases and is notified by the court or the parties that he or she has been selected to mediate a case within that court’s mediation program; and



(2) Has agreed to mediate a general civil case pending in a superior court after being notified by the court or the parties that he or she was recommended, selected, or appointed by that court or will be compensated by that court to mediate a case within that court’s mediation program.



(b) If a court’s panel or list includes firms that provide mediation services, all mediators affiliated with a listed firm are required to comply with the rules in this part when they are notified by the court or the parties that the firm was selected from the court list to mediate a general civil case within that court’s mediation program.



(c) Except as otherwise provided in these rules, the rules in this part apply from the time the mediator agrees to mediate a case until the end of the mediation in that case.



(d) The rules in this part do not apply to judges or other judicial officers while they are serving in a capacity in which they are governed by the Code of Judicial Ethics.



(e) The rules in this part do not apply to settlement conferences conducted under rule 222 of the California Rules of Court.



Advisory Committee Comment


Subdivision (d). Although these rules do not apply to them, judicial officers who serve as mediators in their courts’ mediation programs are nevertheless encouraged to be familiar with and observe these rules when mediating, particularly the rules concerning subjects not covered in the Code of Judicial Ethics such as voluntary participation and self-determination.



Rule 1620.1 adopted effective January 1, 2003.



Drafter’s Notes


2002—See note following rule 1620.



Rule 1620.2. Definitions



As used in this part, unless the context or subject matter otherwise requires:



(a) [Mediation] “Mediation” means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.




(b) [Mediator] “Mediator” means a neutral person who conducts a mediation.



(c) [Participant] “Participant” means any individual, entity, or group, other than the mediator taking part in a mediation, including but not limited to attorneys for the parties.



(d) [Party] “Party” means any individual, entity, or group taking part in a mediation who is a plaintiff, a defendant, a cross-complainant, a cross-defendant, a petitioner, a respondent, or an intervenor in the case.



Advisory Committee Comment


Subdivision (b). This definition departs from the definition of “mediator” in Evidence Code section 1115(b) in that it does not include persons designated by the mediator to assist in the mediation or to communicate with a participant in preparation for the mediation. However, these definitions are applicable only to these rules of conduct and do not limit or expand mediation confidentiality under the Evidence Code or other law.



Subdivision (c). “Participant” includes insurance adjusters, experts, and consultants as well as the parties and their attorneys.



Rule 1620.2 adopted effective January 1, 2003.



Drafter’s Notes


2002—See note following rule 1620.


Rule 1620.3. Voluntary participation and self-determination



A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties. For this purpose a mediator must:



(a) Inform the parties, at or before the outset of the first mediation session, that any resolution of the dispute in mediation requires a voluntary agreement of the parties;



(b) Respect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time; and



(c) Refrain from coercing any party to make a decision or to continue to participate in the mediation.



Advisory Committee Comment


Voluntary participation and self-determination are fundamental principles of mediation that apply both to mediations in which the parties voluntarily elect to mediate and to those in which the parties are required to go to mediation in a mandatory court mediation program or by court order. Although the court may order participants to attend mediation, a mediator may not mandate the extent of their participation in the mediation process or coerce any party to settle the case.



After informing the parties of their choices and the consequences of those choices, a mediator can invoke a broad range of approaches to assist the parties in reaching an agreement without offending the principles of voluntary participation and self-determination, including (1) encouraging the parties to continue participating in the mediation when it reasonably appears to the mediator that the possibility of reaching an uncoerced, consensual agreement has not been exhausted and (2) suggesting that a party consider obtaining professional advice (for example, informing an unrepresented party that he or she may consider obtaining legal advice). Conversely, examples of conduct that violate the principles of voluntary participation and self-determination include coercing a party to continue participating in the mediation after the party has told the mediator that he or she wishes to terminate the mediation, providing an opinion or evaluation of the dispute in a coercive manner or over the objection of the parties, using abusive language, and threatening to make a report to the court about a party’s conduct at the mediation.



Rule 1620.3 adopted effective January 1, 2003.



Drafter’s Notes


2002—See note following rule 1620.



Rule 1620.4. Confidentiality



(a) [Compliance with confidentiality law] A mediator must, at all times, comply with the applicable law concerning confidentiality.



(b) [Informing participants of confidentiality] At or before the outset of the first mediation session, a mediator must provide the participants with a general explanation of the confidentiality of mediation proceedings.



(c) [Confidentiality of separate communications; caucuses] If, after all the parties have agreed to participate in the mediation process and the mediator has agreed to mediate the case, a mediator speaks separately with one or more participants out of the presence of the other participants, the mediator must first discuss with all participants the mediator’s practice regarding confidentiality for separate communications with the participants. 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 or participants who revealed the information.



(d) [Use of confidential information] A mediator must not use information that is acquired in confidence in the course of a mediation outside the mediation or for personal gain.


Advisory Committee Comment


Subdivision (a). The general law concerning mediation confidentiality is found in Evidence Code sections 703.5 and 1115–1128 and in cases interpreting those sections. (See, e.g., Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1; Rinaker v. Superior Court (1998) 62 Cal.App.4th 155; and Gilbert v. National Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240.)



Rule 1620.4 adopted effective January 1, 2003.



Drafter’s Notes


2002—See note following rule 1620.



Rule 1620.5. Impartiality, conflicts of interest, disclosure, and withdrawal



(a) [Impartiality] A mediator must maintain impartiality toward all participants in the mediation process at all times.



(b) [Disclosure of matters potentially affecting impartiality]



(1) A mediator must make reasonable efforts to keep informed about matters that reasonably could raise a question about his or her ability to conduct the proceedings impartially, and must disclose these matters to the parties. These matters include, but are not limited to:



(A) Past, present, and currently expected interests, relationships, and affiliations of a personal, professional, or financial nature; and



(B) The existence of any grounds for disqualification of a judge specified in Code of Civil Procedure section 170.1.



(2) A mediator’s duty to disclose is a continuing obligation, from the inception of the mediation process through its completion. Disclosures required by this rule must be made as soon as practicable after a mediator becomes aware of a matter that must be disclosed. To the extent possible, such disclosures should be made before the first mediation session, but in any event they must be made within the time required by applicable court rules or statutes.



(c) [Proceeding if there are no objections or questions concerning impartiality] Except as provided in subdivision (f) below, if, after a mediator makes disclosures, no party objects to the mediator and no participant raises any question or concern about the mediator’s ability to conduct the mediation impartially, the mediator may proceed.



(d) [Responding to questions or concerns concerning impartiality] If, after a mediator makes disclosures or at any other point in the mediation process, a participant raises a question or concern about the mediator’s ability to conduct the mediation impartially, the mediator must address the question or concern with the participants. Except as provided in subdivision (f), if, after the question or concern is addressed, no party objects to the mediator, the mediator may proceed.




(e) [Withdrawal or continuation upon party objection concerning impartiality] In a two-party mediation, if any party objects to the mediator after the mediator makes disclosures or discusses a participant’s question or concern regarding the mediator’s ability to conduct the mediation impartially, the mediator must withdraw. In a mediation in which there are more than two parties, the mediator may continue the mediation with the nonobjecting parties, provided that doing so would not violate any other provision of these rules, any law, or any local court rule or program guideline.



(f) [Circumstances requiring mediator recusal despite party consent] Regardless of the consent of the parties, a mediator either must decline to serve as mediator or, if already serving, must withdraw from the mediation if:



(1) The mediator cannot maintain impartiality toward all participants in the mediation process; or



(2) Proceeding with the mediation would jeopardize the integrity of the court or of the mediation process.



Advisory Committee Comment


Subdivision (b). This subdivision is intended to provide parties with information they need to help them determine whether a mediator can conduct the mediation impartially. A mediator’s overarching duty under this subdivision is to make a “reasonable effort” to identify matters that, in the eyes of a reasonable person, could raise a question about the mediator’s ability to conduct the mediation impartially, and to inform the parties about those matters. What constitutes a “reasonable effort” to identify such matters varies depending on the circumstances, including whether the case is scheduled in advance or received on the spot, and the information about the participants and the subject matter that is provided to the mediator by the court and the parties.



The interests, relationships, and affiliations that a mediator may need to disclose under subdivision (b)(1)(A) include but are not limited to: (1) prior, current, or currently expected service as a mediator in another mediation involving any of the participants in the present mediation; (2) prior, current, or currently expected business relationships or transactions between the mediator and any of the participants; and (3) the mediator’s ownership of stock or any other significant financial interest involving any participant in the mediation. Currently expected interests, relationships, and affiliations may include, for example, an intention to form a partnership or to enter into a future business relationship with one of the participants in the mediation.



Although subdivison (b)(1) specifies interests, relationships, affiliations, and matters that are grounds for disqualification of a judge under Code of Civil Procedure section 170.1, these are only examples of common matters that reasonably could raise a question about a mediator’s ability to conduct the mediation impartially and thus, must be disclosed. The absence of particular interests, relationships, affiliations, and section 170.1 matters does not necessarily mean that there is no matter that could reasonably raise a question about the mediator’s ability to conduct the mediation impartially. A mediator must make determinations concerning disclosure on a case-by-case basis, applying the general criteria for disclosure under subdivision (b)(1).



Attorney mediators should be aware that under the section 170.1 standard, they may need to make disclosures when an attorney in their firm is serving or has served as a lawyer for any of the parties in the mediation. Section 170.1 does not specifically address whether a mediator must disclose when another member of the mediator’s dispute resolution services firm is providing or has provided services to any of the parties in the mediation. Therefore, a mediator must evaluate such circumstances under the general criteria for disclosure under subdivision (b)(1)—that is, is it a matter that, in the eyes of a reasonable person, could raise a question about the mediator’s ability to conduct the mediation impartially?



If there is a conflict between the mediator’s obligation to maintain confidentiality and the mediator’s obligation to make a disclosure, the mediator must determine whether he or she can make a general disclosure of the circumstance without revealing any confidential information, or must decline to serve.



Rule 1620.5 adopted effective January 1, 2003.


Drafter’s Notes


2002—See note following rule 1620.



Rule 1620.6. Competence



(a) [Compliance with court qualifications] A mediator must comply with experience, training, educational, and other requirements established by the court for appointment and retention.



(b) [Truthful representation of background] A mediator has a continuing obligation to truthfully represent his or her background to the court and participants. Upon a request by any party, a mediator must provide truthful information regarding his or her experience, training, and education.



(c) [Informing court of public discipline and other matters) A mediator must also inform the court if:



(1) Public discipline has been imposed on the mediator by any public disciplinary or professional licensing agency;



(2) The mediator has resigned his or her membership in the State Bar or another professional licensing agency while disciplinary or criminal charges were pending;



(3) A felony charge is pending against the mediator;



(4) The mediator has been convicted of a felony or of a misdemeanor involving moral turpitude; or



(5) There has been an entry of judgment against the mediator in any civil action for actual fraud or punitive damages.



(d) [Assessment of skills; withdrawal] A mediator has a continuing obligation to assess whether or not his or her level of skill, knowledge, and ability is sufficient to conduct the mediation effectively. A mediator must decline to serve or withdraw from the mediation if the mediator determines that he or she does not have the level of skill, knowledge, or ability necessary to conduct the mediation effectively.


Advisory Committee Comment


Subdivision (d). No particular advanced academic degree or technical or professional experience is a prerequisite for competence as a mediator. Core mediation skills include communicating clearly, listening effectively, facilitating communication among all participants, promoting exploration of mutually acceptable settlement options, and conducting oneself in a neutral manner.



A mediator must consider and weigh a variety of issues in order to assess whether his or her level of skill, knowledge, and ability is sufficient to make him or her effective in a particular mediation. Issues include whether the parties (1) were involved or had input in the selection of the mediator; (2) had access to information about the mediator’s background or level of skill, knowledge, and ability; (3) have a specific expectation or perception regarding the mediator’s level of skill, knowledge, and ability; (4) have expressed a preference regarding the style of mediation they would like or expect; or (5) have expressed a desire to discuss legal or other professional information, to hear a personal evaluation of or opinion on a set of facts as presented, or to be made aware of the interests of persons who are not represented in mediation.



Rule 1620.6 adopted effective January 1, 2003.



Drafter’s Notes


2002—See note following rule 1620.



Rule 1620.7. Quality of mediation process



(a) [Diligence] A mediator must make reasonable efforts to advance the mediation in a timely manner. If a mediator schedules a mediation for a specific time period, he or she must keep that time period free of other commitments.



(b) [Procedural fairness] A mediator must conduct the mediation proceedings in a procedurally fair manner. “Procedural fairness” means a balanced process in which each party is given an opportunity to participate and make uncoerced decisions. A mediator is not obligated to ensure the substantive fairness of an agreement reached by the parties.



(c) [Explanation of process] In addition to the requirements of rule 1620.3 (voluntary participation and self-determination), rule 1620.4(a) (confidentiality), and subdivision (d) of this rule (representation and other professional services), at or before the outset of the mediation the mediator must provide all participants with a general explanation of:



(1) The nature of the mediation process;



(2) The procedures to be used; and



(3) The roles of the mediator, the parties, and the other participants.



(d) [Representation and other professional services] A mediator must inform all participants, at or before the outset of the first mediation session, that during the mediation he or she will not represent any participant as a lawyer or perform professional services in any capacity other than as an impartial mediator. Subject to the principles of impartiality and self-determination, a mediator may provide information or opinions that he or she is qualified by training or experience to provide.



(e) [Recommending other services] A mediator may recommend the use of other services in connection with a mediation and may recommend particular providers of other services. However, a mediator must disclose any related personal or financial interests if recommending the services of specific individuals or organizations.



(f) [Nonparticipants’ interests] A mediator may bring to the attention of the parties the interests of others who are not participating in the mediation but who may be affected by agreements reached as a result of the mediation.




(g) [Combining mediation with other ADR processes] A mediator must exercise caution in combining mediation with other alternative dispute resolution (ADR) processes and may do so only with the informed consent of the parties and in a manner consistent with any applicable law or court order. The mediator must inform the parties of the general natures of the different processes and the consequences of revealing information during any one process that might be used for decision making in another process, and must give the parties the opportunity to select another neutral for the subsequent process. If the parties consent to a combination of processes, the mediator must clearly inform the participants when the transition from one process to another is occurring.



(h) [Settlement agreements] Consistent with subdivision (d), a mediator may present possible settlement options and terms for discussion. A mediator may also assist the parties in preparing a written settlement agreement, provided that in doing so the mediator confines the assistance to stating the settlement as determined by the parties.



(i) [Discretionary termination and withdrawal] A mediator may suspend or terminate the mediation or withdraw as mediator when he or she reasonably believes the circumstances require it, including when he or she suspects that:



(1) The mediation is being used to further illegal conduct;



(2) A participant is unable to participate meaningfully in negotiations; or



(3) Continuation of the process would cause significant harm to any participant or a third party.



(j) [Manner of withdrawal] When a mediator determines that it is necessary to suspend or terminate a mediation or to withdraw, the mediator must do so without violating the obligation of confidentiality and in a manner that will cause the least possible harm to the participants.


Advisory Committee Comment


Subdivision (c). The explanation of the mediation process should include a description of the mediator’s style of mediation.



Subdivision (d). Subject to the principles of impartiality and self-determination, and if qualified to do so, a mediator may (1) discuss a party’s options, including a range of possible outcomes in an adjudicative process; (2) offer a personal evaluation of or opinion on a set of facts as presented, which should be clearly identified as a personal evaluation or opinion; or (3) communicate the mediator’s opinion or view of what the law is or how it applies to the subject of the mediation, provided that the mediator does not also advise any participant about how to adhere to the law or on what position the participant should take in light of that opinion.



One question that frequently arises is whether a mediator’s assessment of claims, defenses, or possible litigation outcomes constitutes legal advice or the practice of law. Similar questions may arise when accounting, architecture, construction, counseling, medicine, real estate, or other licensed professions are relevant to a mediation. This rule does not determine what constitutes the practice of law or any other licensed profession. A mediator should be cautious when providing any information or opinion related to any field for which a professional license is required, in order to avoid doing so in a manner that may constitute the practice of a profession for which the mediator is not licensed, or in a manner that may violate the regulations of a profession that the mediator is licensed to practice. A mediator should exercise particular caution when discussing the law with unrepresented parties and should inform such parties that they may seek independent advice from a lawyer.



Subdivision (i). Subdivision (i)(2) is not intended to establish any new responsibility or diminish any existing responsibilities that a mediator may have under, the Americans With Disabilities Act or other similar law, to attempt to accommodate physical or mental disabilities of a participant in mediation.



Rule 1620.7 adopted effective January 1, 2003.



Drafter’s Notes


2002—See note following rule 1620.



Rule 1620.8. Marketing



(a) [Truthfulness] A mediator must be truthful and accurate in marketing his or her mediation services. A mediator is responsible for ensuring that both his or her own marketing activities and any marketing activities carried out on his or her behalf by others comply with this rule.



(b) [Representations concerning court approval] A mediator may indicate in his or her marketing materials that he or she is a member of a particular court’s panel or list but, unless specifically permitted by the court, must not indicate that he or she is approved, endorsed, certified, or licensed by the court.



(c) [Promises, guarantees, and implications of favoritism] In marketing his or her mediation services, a mediator must not:



(1) Promise or guarantee results; or



(2) Make any statement that directly or indirectly implies bias in favor of one party or participant over another.



(d) [Solicitation of business] A mediator must not solicit business from a participant in a mediation proceeding while that mediation is pending.


Advisory Committee Comment


Subdivision (d). This rule is not intended to prohibit a mediator from accepting other employment from a participant while a mediation is pending, provided that there was no express solicitation of this business by the mediator and that accepting that employment does not contravene any other provision of these rules, including the obligations to maintain impartiality, confidentiality, and the integrity of the process. If other employment is accepted from a participant while a mediation is pending, however, the mediator may be required to disclose this to the parties under rule 1620.5.



This rule also is not intended to prohibit a mediator from engaging in general marketing activities. General marketing activities include, but are not limited to, running an advertisement in a newspaper and sending out a general mailing (either of which may be directed to a particular industry or market).



Rule 1620.8 adopted effective January 1, 2003.



Drafter’s Notes


2002—See note following rule 1620.



Rule 1620.9. Compensation and gifts



(a) [Compliance with law] A mediator must comply with any applicable requirements concerning compensation established by statute or the court.



(b) [Disclosure of and compliance with compensation terms] Before commencing the mediation, the mediator must disclose to the parties in writing any fees, costs, or charges to be paid to the mediator by the parties. A mediator must abide by any agreement that is reached concerning compensation.



(c) [Contingent fees] The amount or nature of a mediator’s fee must not be made contingent upon the outcome of the mediation.



(d) [Gifts and favors] A mediator must not at any time solicit or accept from or give to any participant or affiliate of a participant any gift, bequest, or favor that might reasonably raise a question concerning the mediator’s impartiality.



Advisory Committee Comment


Subdivision (b). It is good practice to put mediation fee agreements in writing, and mediators are strongly encouraged to do so; however, nothing in this rule is intended to preclude enforcement of a compensation agreement for mediation services that is not in writing.



Subdivision (d). Whether a gift, bequest, or favor “might reasonably raise a question concerning the mediator’s impartiality” must be determined on a case-by-case basis. This subdivision is not intended to prohibit a mediator from accepting other employment from any of the participants, consistent with rule 1620.8(d).



Rule 1620.9 adopted effective January 1, 2003.



Drafter’s Notes


2002—See note following rule 1620.


Rule 1622. Complaint procedure



(a) Each superior court that makes a list of mediators available to litigants in general civil cases or that recommends, selects, appoints, or compensates a mediator to mediate any general civil case pending in the court must establish procedures for receiving, investigating, and resolving complaints against the mediators who are on the court’s list or who are recommended, selected, appointed, or compensated by the court.



(b) The court may reprimand a mediator, remove a mediator from the court’s panel or list, or otherwise prohibit a mediator from receiving future mediation referrals from the court if the mediator fails to comply with the rules of conduct for mediators in this part, when applicable.



Advisory Committee Comment


Section 16 of the Standards of Judicial Administration sets out recommendations concerning the procedures that a court should use in receiving, investigating, and resolving complaints against commissioners and referees and may serve as guidance in adopting procedures for receiving, investigating, and resolving complaints against mediators.



Rule 1622 adopted effective January 1, 2003.

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