Mediation Message No. 44


The Judicial Council, which has already established ethical rules for the conduct of court-connected mediations (see Rule of Court 3.850 et seq.; court-connected mediations, as contrasted with private mediations, are supervised by persons selected from a superior court’s list or panel for the mediation of general civil cases), has issued a preliminary draft of model qualification standards for panelists in court-connected mediations. If this draft becomes a formal rule proposal, it will be circulated for public comment. (Note that while the Judicial Council has not yet established ethical standards for private mediations, Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal.App.4th 536, 543 encourages “judicial officers and judges acting as mediators … to observe … rules [3.850 et seq.] when mediating.”)

The preliminary draft, which is for informal discussion purposes only, includes the following proposals:

• Any list of neutrals made available to litigants by the courts must contain, at a minimum, the types of ADR services offered by the neutral; the neutral’s résumé, including ADR training and experience, and the fees charged by the neutral;

• To be eligible for the superior court’s list or panel, the neutral must agree to comply with all applicable ethics requirements and Rules of Court and agree to serve on a pro bono or “modest-means basis” (this probably is the equivalent of the Los Angeles Superior Court’s $150 per hour party-pay program) in at least one case per year;

• The mediator must have either a bachelor’s degree from an accredited college or university or a high-school diploma or GED credential and at least six years of subsequent work or volunteer experience relevant to the types of disputes that may be mediated;

• The mediator must have completed either 40 hours of specified mediation training within the past two years or completed 40 hours of such training at any time and completed 7 hours of continuing or advanced mediation training within the past two years. At least 35 of the latter 40 hours must have been in a single, comprehensive, mediation training program that included conflict, communication and mediation theory; stages of the mediation process; mediation and communication skills and techniques; mediation ethics; the law governing mediation, including mediation confidentiality and, finally, demonstrations of mediation and role-playing. The 40-hour program must also include training on the Rules of Court governing court-connected mediation programs, cultural and gender issues in mediation and the preparation of mediated agreements;

• The mediator must have completed an orientation sponsored by the local court concerning its mediation program;

• The mediator must have mediated or co-mediated at least three or observed at least six complete mediations of at least two hours in length within the past year and mediated at least two complex mediations of at least two hours in length that were observed and evaluated by an approved mentor mediator;

• The mediator must submit references or evaluation forms from at least three individuals who participated in mediations conducted or co-mediated by the applicant;

• An applicant who does not meet all of the above requirements may still qualify as a mediator if he or she provides the local ADR administrator “with other satisfactory evidence of sufficient education, training, skills, and experience”;

• To continue to be included on a court’s list of mediators, mediators shall, every two years, complete at least 7 hours of continuing mediation education or training on topics covered in the fourth bulleted paragraph, above. And, at least 1 of those 7 hours must address mediation ethics.

Any person who wants to comment on this preliminary draft may contact Heather Anderson, Office of the General Counsel, 415-865-7691,; Alan Wiener, Office of the General Counsel, 818-558-3051, or appear on Monday, June 2 from 5:00 to 7:00 p.m. at a public forum on the matter at the Administrative Office of the Courts, Southern Regional Office, 2255 North Ontario Street, Suite 200 in Burbank or on Wednesday, June 4, from 5:00 to 7:00 p.m. at Thomas Jefferson School of Law, 2121 San Diego Avenue in San Diego.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, May 2008

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