by Kristin L. Yokomoto
California’s court system handled over 4.5 million cases in fiscal year 2022-23. Judicial Council of California, 2024 Court Statistics Report: Statewide Caseload Trends 2013-14 Through 2022-23 (2024), https://www.courts.ca.gov/documents/2024-Court-Statistics-Report.pdf. Many of the cases were resolved through mediation (court-connected or private), a process in which a mediator facilitates communication between disputants to assist them in reaching a mutually acceptable agreement without having to resort to litigation.
Mediators Steven J. Rottman, Esq., and Steven W. Paul, Esq., professors at the Straus Institute for Dispute Resolution at the Pepperdine Caruso School of Law, describe mediators this way: “Mediators wear many hats: facilitator, coach, evaluator, therapist, resource, sounding board, confidante, problem solver, negotiation consultant, process architect, and designer of opportunity. [Mediators] guide counsel and disputants through conflict, exploring root causes of the dispute … and craft future opportunities. [Mediators] alleviate burdens and suffering, look to the future, and close deals.” In fulfilling such an important role, mediators need to be competent, avoid conflicts of interest, protect confidential information, and more. Professor Steven J. Rottman and Professor Steven W. Paul, Advanced Mediation Syllabus (Fall 2023).
While (1) arbitrators are required to comply with the Ethics Standards for Neutral Arbitrators in Contractual Arbitration adopted by the Judicial Council under Code of Civil Procedure section 1281.85, effective July 1, 2002, and further substantially amended and reorganized effective January 1, 2003; (2) private judges acting as mediators outside of the court system are governed by the Code of Judicial Ethics; and (3) court-appointed mediators are subject to the California Rules of Court Rules 3.850-3.872, there is less oversight over non-court-appointed mediators who are not judges and are associated with alternative dispute resolution companies, such as JAMS or Mediate.com, or have their own company or law firm (ADR Companies).
Mediators at ADR Companies have historically practiced, for the most part, without imposed ethical rules. Part of the thinking has been that because the disputants or their lawyers choose the mediator, meaning the mediator is not imposed on them by the court, there is or should be less concern and thus less need to impose ethical responsibilities on the mediators. Essentially, mediations happen behind closed doors without any method for a disputant or his lawyer to report concerning mediator behavior to anyone due to the mediation’s confidentiality under Evidence Code section 1119, which prohibits the disputants from disclosing any information about the mediation—even about alleged mediator or attorney misconduct. Due to recent events, there is increasing discussion about the lack of ethical guidelines for mediators.
Last year, former California Supreme Court Chief Justice, Honorable Tani Cantil-Sakauye, expressed her concerns over the rapidly growing industry of private judge mediations without regulation as a threat to the evolution of California’s jurisprudence system. She said: “I believe the legislature is the proper authority to regulate the conduct of the mediators.” In the same article, State Senator Tom Umberg (D-Orange), Chair of the Senate Judiciary Committee, stated, “If I’m reelected, there will be hearings and there will be legislation.” Senator Umberg mentioned the mandatory disclosure of past relationships by a mediator as a possible legislative measure. Matt Hamilton and Harriet Ryan, “‘Shocking’ Tom Girardi Scandal Shows Need for Legal Reforms,” California Chief Justice Says, Los Angeles Times (Aug. 9, 2022), https://www.latimes.com/california/story/2022-08-09/chief-justice-calls-for-new-regulation-of-private-judging-in-light-of-girardi-scandal.
Rule 2.4 of the California Rules of Professional Responsibility provides that when a lawyer acts as a neutral to assist two or more persons who are not clients of the lawyer to reach a resolution, such lawyer shall inform all unrepresented parties that the lawyer is not representing them. In Comment [1], Rule 2.4 provides that the lawyer neutral may also be subject to various codes of ethics, such as the Judicial Council ABA Standards for Mediators in Court-Connected Mediation Programs or the Judicial Council Ethics ABA Standards for Neutral Arbitrators in Contractual Arbitration. Rule 1.12 addresses certain conflicts of interest that could arise when a mediator seeks employment by a party to a mediation. Neither Rule 2.4 nor Rule 1.12, however, addresses the conduct of a mediation and, importantly, the interplay between that conduct and Evidence Code section 1119.
Pending legislation, Assembly Bill 924, introduced on February 14, 2023, if passed as amended, would require mediators and ADR Companies that receive a complaint against a mediator alleging that she violated a rule of conduct during a mediation to submit a report regarding the alleged violation to the State Bar of California. However, this proposed bill could be interpreted as superseding the statutory mediation confidentiality under Evidence Code section 1119.
Without oversight of private mediators, mediators should at least be aware of the Model ABA Standards for Mediators issued in 2005 by the American Bar Association (ABA Standards). These nine ABA Standards, developed by leading mediation organizations, were designed to serve as ethical guidelines for mediators and promote public confidence in mediation as a process for resolving disputes.
1. Self-Determination: The mediation should be conducted based on the self-determination of the parties. This means that all parties come to their own voluntary, uncoerced, and informed decisions. Parties may exercise self-determination throughout the process, including by participating in the selection of the mediator, giving input or making decisions on the process of the mediation, and participating in the negotiation and outcome of the dispute.
2. Impartiality: A mediator shall be impartial and avoid any conduct that gives the appearance of partiality. A mediator needs to be aware of his or her biases and shall not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, performance at a mediation, or any other reason. A mediator needs to be able to identify and understand her unconscious biases, such as unconscious prejudice, which may require education and training. See generally Louis M. Marlin, Overcoming Bias in Mediation, The Advocate (August 2017).
3. Conflicts of Interest: A mediator shall disclose all actual and potential conflicts of interest reasonably known to the mediator. After disclosure, the mediator shall decline to mediate unless all parties choose to retain the mediator. The ABA Standards describe a conflict of interest as “a dealing or relationship that might create an impression of possible bias.” Perceived, actual, and potential conflicts of interest are detrimental to the process. Conflicts later discovered could lead to the perception by a disputant that the mediator was not acting impartially during the mediation.
4. Competence: A mediator shall mediate only when the mediator has the necessary qualifications to satisfy the reasonable expectations of the parties. The ABA Standards allow any person chosen by the disputants to serve as a mediator without any specific training. However, training and experience in mediation are often necessary for an effective mediation. Mediators should make available for review information regarding their training, education, and experience.
5. Confidentiality: The mediator must maintain the confidentiality of information and not disclose such information unless the parties expressly agree the mediator may do so or the mediator is required to do so by law. If the mediator meets with a party in private caucus, the mediator shall not communicate any shared information to another party without the necessary express consent. Mediator confidentiality is critical to allow the parties to share information with the mediator, especially during private sessions.
6. Quality of the Process: A mediator shall conduct the mediation fairly, diligently, and in a manner consistent with the principle of self-determination by the parties. The ABA Standards consider it a duty of the mediator to work to create a quality process. Part of that obligation is a commitment to promote procedural fairness and to provide an environment for adequate self-determination by the parties.
7. Advertising and Solicitation: A mediator shall be truthful in advertising and solicitation for mediation. The ABA Standards require that statements about services offered and the expertise of the mediator must be truthful and that mediators must refrain from promises and guarantees of results. Additionally, all communication with the public related to a mediator must avoid the appearance of a conflict during and after a mediation.
8. Fees and Other Charges: A mediator shall fully disclose and explain the basis of compensation, fees, and charges to the parties. The ABA Standards provide that sufficient information about fees should be given at the outset. Fees must be reasonable, and any agreements as to fees should be in writing.
9. The Advancement of the Mediation Process: The ABA Standards regard the improvement of the practice of mediation to be a responsibility of anyone who serves as a mediator. Mediators should use their knowledge of the mediation process to help educate the public about the process, make mediation accessible to those who would like to use it, correct abuses in the system, and improve their mediation skills.
Model Standards of Conduct for Mediators (September 2005), https://www.adr.org/sites/default/files/document_repository/AAA-Mediators-Model-Standards-of-Conduct-10-14-2010.pdf.
The inherent nature of the ABA Standards represents the core values of mediation and provides ethical guidelines to mediators. However, some commentators think the ABA Standards are vague and fail to adequately guide mediators in situations of competing values and may be in need of clarification and update. See, e.g., Omer Shapira, A Critical Assessment of the Model Standards of Conduct for Mediators (2005): Call for Reform, Marq. L. Rev., Volume 100 Issue 1, Article 3 (2016).
Many of the ADR Companies have their own ethics guidelines. For example, JAMS has its Mediators Ethics Guidelines, which provide that: (1) a mediator should ensure that all parties are informed about the mediator’s role and nature of the mediation process, and that all parties understand the terms of the settlement; (2) a mediator should protect the voluntary participation of each party; (3) a mediator should be competent to mediate the particular matter; (4) a mediator should maintain the confidentiality of the process; (5) a mediator should conduct the process impartially; (6) a mediator should refrain from giving legal advice; (7) a mediator should withdraw under certain circumstances; and (8) a mediator should avoid marketing that is misleading and should not guarantee results.
On the California level, there is a California not-for-profit ADR statewide organization of mediators and other dispute resolvers with a full-time lobbyist, the California Dispute Resolution Council (CDRC), that developed the CDRC ABA Standards of Practice of California Mediators. Cal. Disp. Resol. Council 2000, https://www.cdrc.net/standards-of-practice-for-californi. The CDRC Standards of Practice are similar to the ABA Standards in that they include standards for: (1) Voluntary Participation and Self Determination; (2) Impartiality, Bias and Disclosure; (3) Conducting a Mediation; (4) Confidentiality; (5) Competence; and (6) Marketing and Compensation.
Many states have enacted their own overarching rules related to a mediator’s ethical duties, while others, including California, do not have rules that impose the responsibilities set forth in the ABA Standards. For example, the Supreme Court of Texas, having recognized the need for oversight of the quality of mediation, decided that ethical rules should be implemented and enforced to address, among other things, the avoidance and disclosure of conflicts of interest and timely disclosure of fees; Florida has established disciplinary rules and committees responsible for reviewing, investigating, and adjudicating complaints about mediator conduct in violation of those rules; the Alabama Code of Ethics allows the Center for Dispute Resolution to remove mediators from its list of approved mediators for violations of the ABA Standards. Susan Nauss Exon, Appendix A: State Mediation Codes of Conduct and Mediation Ethical Advisory Opinions, https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/412745963/appendices.pdf. Many other states have adopted some form of ethical responsibilities for mediators.
In time, we will see if the California legislature moves Assembly Bill 924 forward and/or adopts the ABA Standards or other ethical responsibilities for mediators. Until then, it would behoove mediators to comply with the ethical obligations provided in the ABA Standards, particularly with respect to mediator competence, disclosing potential and actual mediator conflicts of interest, and protecting the confidentiality of the mediation process and results.
Kristin L. Yokomoto is a partner at BakerHostetler in Costa Mesa where she focuses her practice on private wealth planning. Kristin is a Certified Specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization. She is a member of the California Lawyers Association’s Trust and Estate Executive Committee and Orange County Bar Association’s Professionalism & Ethics Committee. The views expressed herein are her own. She can be reached at kyokomoto@bakerlaw.com.